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THE LAW

OF

Presumptive Evidence,

INCLUDING PRESIBIPTIONS BOTH OF LAW A:;D

OF FACT, AND THE BURDEN OF PROOF BOTH

IN CIVIL AND CRIMINAL CASES,

REDUCED TO RULES.

JOHK D. LAWSON^,

Author of a similar work on " The Law of Expert and Opinion Evidence."

SAN FRANCISCO:
A. L. BANCROFT & CO., '

Law Book Pubusuers, Booksellers, axu Stationers.
1885.

Entered according to Act of Congress, in the year 1885, by

JOUN D. LAWSON,
In the Office of the Librarian of Congress, at Washington.

PREFACE.

The present work, following the method pursued by me
in my " Expert and Opinion Evidence," is an endeavor to
present the topic of Presumptive Evidence (and incidentally
the Burden of Proof), as follows, viz. : 1. A series of rules
and sub-rules. 2. A series of illustrations under each rule.
3. A discussion or commentary upon the rule and upon the
particular illustration, showing the reasons for the rules
themselves, and the grounds upon which the courts have
proceeded in giving particular applications to them. The
rules are those principles which after an examination of all
the cases on the particular subject, I have concluded are the
lain. The illustrations are all taken from decided cases and
arc, therefore, open to examination and verification by the
student or practitioner. The commentary shows the rea-
soning of the courts in the particular illustrations, and
points out the conflict of authorities wherever such conflict
exists.

In noticing my book on " Expert and Opinion Evidence"

(iii)

iv TKEFACE.

the American Law Bevleio of November, 1883, says of the
jjlan which I adopted in that and have followed in this : —

" It has the great advantage of facilitating rapid search and convenient
reference, even if no higher merit could be ascribed to it. It has the
advantage of showing us that some things in the law at least may be
regarded as settled; that these things are capable of being reduced to
rules, and that these rules may be printed by themselves in such a way
that a judge or practitioner can quickly put his finger upon them. It
also has the advantage of cataloguing, so to speak, in brief language, the
illustrations of the rules, showing the manner in which the rules have
been applied by the courts in cases actually decided."

" "WTiat, under the circumstances of this case, are the
presumptions to be drawn? " is a question which arises con-
stantly in practice. I have a hope that the number of
future cases may be small which will not be found to fall
in principle under one or other of the one hundred and

thirtv-ninc rules contained in this book.

J. D. L.

St, Louis, March 1, 1885.

TABLE OF CONTENTS.

PART I.

THE PRESUMPTIONS OF KNOWLEDGE.
Chapter I.

PAGE

The Pkesumptions of Knowledge of Law axd Fact . . 5-2i

PART II.

THE PRESUMPTIONS OF REGULARITY AND INNOCENCE.

Chapter II.
The Regularity of Judicial Acts 27-53

Chapter III.
The Regularity of Officlu. Acts 5i-CG

Chapter IV.
The Regularity op Business and Unofficial Acts . . G7-92

Chapter V.
The Presumptiox of Ixxocexce ix CI^^L Cases . . . 93-102

Chapter VI.
The Presumption OF Marrlvge AXD Legitimacy , . . 104-119

Chapter VII.
The Presumption Against a Spoliator 120-lGO

(V)

VI TABLE OF CONTENTS.

PAET in.

THE PRESUMPTIONS OF CONTINUANCE AND UNLFORMITT.
Chapter VIII.

PAGE

The Presumption of the Coxtixuaxce of Things Generally 163-191

Chapter IX.
The Presumption OF Life 192-199

Chapter X.
The Presumption of Death 200-239

Chapter^XI.
The Presumption op Survivorship 240-247

Chapter XII.
The Presumption of Identity 248-2G1

Chapter XIIL
The Presumption of Intent 2G2-278

Chapter XrV.
The Presumptions from the Course of Nature . . . 279-306

Chapter XV.

The Presumptions of Payment and the Discharge of Obli-
gations 307-357

Chapter XVI.
The Presumptions Concerning Foreign Laws . . . 85S-380

Chapter XVII.
The Presumptions From the Alteration of Instruments 381-401

TABLE OF CONTENTS. Til

PART IV.
THE PRESUMPTIONS IN THE LAW OF REAL PROPERTY.

Chapter XVIII.

PAGE

The Presumptions from Possession and Lapse of Time . 403-429

PART V.

THE PRESUMPTIONS IN CRIMINAL CASES.

Chapter XIX.
The Presumptions in Favor of Innocence .... 432-492

Chapter XX.
The Presumptions in Disfavor of Innocence . . . . 493-552

PART VI.

GENERAL RULES.

Chapter XXI.
The General Rules as to Presumptions . . . 655-590

TABLE OF RULES.

1130 rules — 122 main, 17 sub.1

PART I.

THE PRESUMPTIONS OF KNOWLEDGE.

CHAPTER I.

The Presumptions of Knowledge of Law and Fact.

Rule 1. — Eveiy one is presumed to know the law
when innorance of it would relieve from the conse-
quences of a crime or from liability upon a contract. 5

Rule 2. — But there is no presumption of knowledge of
private or foreign laws 14

Rule 3. — Persons engaged in a particular trade are
presumed to be acquainted with the value of articles
bought and sold therein, the names under which they
go in such trade, and the general customs obtaining
and followed there 15

Rule 4. — The contents of a writing signed by a party
himself, or by another at his request, are presumed
to be known to him, and so of a paper drawn up by
one for another, and the matters referred to in such

writing 18

(ix)

X TABLE OF RULES.

PAGE

EuLE 5 . — The burden of proof is on the party to show
a material fact of which he is best cognizant ... 20

EuLE 6. — The burden of proof of notice to a bona fide
purchaser is on the person alleging such notice . . 23

EuLE 7. — There is no presumption that a person not
called as a witness has any knowledge of facts . . 23

PART II.

THE PRESUMPTIONS OF REGULARITY AND INNO-
CENCE.

CHAPTER II.

The Regularity of Judicial Acts.

EuLE 8. — Where a court having general jurisdiction
acts in a case, its jurisdiction to so act will be pre-
sumed 27

EuLE 9. — But where the proceedings are taken by an
inferior court, or are under a special authority
granted to any tribunal in a special case or for special
purposes, or are not according to the course of the
common law, the jurisdiction is not presumed, but
must be shown 27

EuLE 10. — The regularity of the proceedings of courts
of general powers is presumed, and so of the pro-
ceedings of inferior courts, jurisdiction being once
shown to exist 34

TABLE OF RULES. XI

PAGE

KuLE 11. — Jurisdiction of the person beyond the ter-
ritorial limits of a court of general powers can not be
presumed 45

Rule 12. — And a presumption can not contradict
facts averred or proved 46

CHAPTER III.

The REGULARiTr of Official Acts.

Rule 13. — The presumption is that one who is proved
to have acted in an oflBcial cai:)acity possessed the
necessary and proper authority 46

Rule 14. — The presumption is that public officers do
as the law and their duty requires them .... 54

Sub-Rule 1. — And the presumption in Rules 13 and
14 prevails as to the authority and acts of private
officers 'GO

CHAPTER rv.

The Regularity of Busixess and Uxofficial Acts.

Rule 15. — In commercial transactions the jDresump-
tion is that the usual course of business was followed
by the parties thereto C7

Sub-Rule 1. — Persons engaged in a particular trade
are presumed to be acquainted ivith the value of arti-
cles bought and sold therein, the names under icJdch
they go in such trade, a)id the general customs obtain-
ing and followed there 72

XI I TABLE OF RULES.

PAGE

SuB-TJuLE 2. — All agreement to pay for services ren-
dered and accepted is presumed, unless the 'parties
are 'members of the same family or near relatives . 75

Sub-Rule 3. — N'egotiahlepajoer is presumed to have been
regularly 'negotiated, and to be or to have been regu-
larly held, except where it was procured or put in cir-
culation through fraud or duress or is illegal . . . 71

Rule 16. — The presumption is that any act done was
done of ri^ht and not of wron<]c 81

Rule 17. — The performance of a mere moral duty is
not presumed 81

Rule 18. — Documents regular on their face are pre-
sumed to have been properly executed, and to have
undergone all formalities essential to their validity . 82

Sub-Rule 1. — Dates are presumed to be correct, when
found in written instrumeiits, but are no evidence of
collateral facts 89

CHAPTER V.

The Pkesumption of Innocence in Civil Cases.

Rule 19. — A person who is shown to have done any
act is presumed to have done it innocently and hon-
estly, and not fraudulently, illegally, or wickedly . 93

CHAPTER VI.

The Presumption of Marriage and Legitimacy.

Rule 20. — Marriage or filiation (parentage) maybe
presumed 104

TABLE Ol'' i:ULES. XIU

PAGE

SuB-KuLE 1 . — TJie law presumes the validity of a mar-
riarje ceremony, and that every person is Ipfjitimale . 106

Rule 21. — A person proved to have been born diir-
in*!- the continuance of a valid marriaire between his
mother and any man, or within such time after the
dissolution thereof and before the celebration of an-
other valid marriage, that his mother's husband could,
according to the course of nature, have been his
father, is presumed to be the legitimate child of his
mother's husband 108

CHAPTER VII.

TuE Presumption Agaixst a Spollator.

EuLE 22. — The omission of a party to an action to
testify to facts or to produce evidence in explanation
of, or to contradict adverse testimony, raises a pre-
sumption against his claims, unless the evidence is
not peculiarly within his power, or is privileged . 120

Rule 23. — But the presumption arising from the non-
production of evidence within the power of the party
docs not relieve the opposite party altogether from
the burden of proving his case 137

Rule 24. — The alteration, suppression, falsification,
or manufacturing of evidence raises a presumption
against the spoliator, where the evidence is relevant
to the case, or it was his duty to preserve it, — omnia
pro2sumuntur contra spoliatorem 140

Rule 25. — The fact of spoliation standing alone ma}--
defeat a claim, but of itself can not sustain a claim . 152

xiv TABLE OF EULES.

PAGE

EuLE 2'o. — But the presumption in disfavor of a spo-
liator does not arise where the document concealed or
destroyed is otherwise proved in the case, or the
spoliation is open and for cause 154

EuLE 27. — The voluntary destruction of a document
raises prima facie a presumption of fraud, and. pre-
cludes the spoliator from giving secondary evi-
dence of its contents in the absence of a legal excuse
for its destruction 157

KuLE 28. — That the destruction was the result of mis-
take, accident, or some fault not amounting to a
fraud furnishes a " legal excuse" within Eule 27. . 159

PAET III.

THE PRESUMPTIONS OF CONTINUANCE AND UNI-
FORMITY.

CHAPTER VIII.

The Presumption of the Coxtinuance of Things Gen-
erally.

Eule 29. — Possession or ownership of either realty
or personalty, non-possession or loss, debts, and
other conditions of property or things, once proved
to exist, are presumed to continue until the contrary
is shown 1G3

TABLE OF RULES. XV

PACK

EuLE 30. — Domicil, residence or non-residence, sol-
vency or insolvency, infancy, partnership, the hold-
ing of an office, authority to do an act, and other
relations or conditions of persons or things, onco
shown to exist are presumed to continue until the
contrary is proved 172

Rule 31. — Sanity or insanity once proved to exist is
presumed to continue. But aliter, as to temporary
insanity, produced by drunkenness, violent disease,
or otherwise 179

Rule 32. — The character and habit of a person is pre-
sumed to continue as proved to be at a time past . 180

Rule 33. — Specific acts done in other cases do not
raise the inference that a similar act Avas done in an-
other case, and evidence of them is inadmissible . 182

Rule 34. — But the habit of an individual being proved
he is presumed to act in a particular case in accord-
ance with that habit 184

Rule 35. — But a future continuance is never pre-
sumed 187

Rule 36. — An admission made by a party to a suit,
or his attorney, that a certain fact exii^ts and need
not be proved, does not dispense with proof of the
existence of that fact subsequent to the date of the
admission 180

Rule 37. — And a presumption is not retrospective . 190

Rule 38. — In case of conflicting presumptions, the
presumption of the continuance of things is weaker
than the presumption of innocence 191

XVI TABLE OF KULES.

CHAPTER IX.
The PREStnMPTiox of Li^e.

PAGE

EuLE 39. — Love of life is presumed, and a person
proved to have been alive at a former time is pre-
sumed to be alive at the present time until his death
is proved or a presumption of death arises . . . 192

EuLE 40. — Death may be proved by reputation, by
hearsay, or by evidence of facts inconsistent with the
theory of the existence of life 197

Edle 41. — One who is proved to have been unmarried
when last known to be alive will be presumed to have
died childless; but it is otherwise where he or she
was married when last known to be alive .... 197

EuLE 42. — But it is to be presumed that a person
proved to be dead left an heir 198

CHAPTER X.

The PREsrarPTiox of Death.

EuLE 43. — An absentee shown not to have been
heard of for seven years by persons, who if he
had been alive would naturally have heard of him,
is presumed to have been alive until the expiry of
such seven years, and to have died at the end of
that term 200

TABLE OF nULES. Xvii

PAGE

Rule 44. — An "absentee" wilhin Rule 43 is one
•vvho has left his residence, home, or domicil, cither
temporarily (intending to return) or permanently
(intendinf^ to establish a fixed residence, home, or
domicil elsewhere). Where the "removal is tem-
porary, absence alone, without being heard of, is
sufficient to raise the presumption of death within
Rule 43. But where it is permanent, without inten-
tion to return, the presumption does not arise until
inquiry has been made at the fixed residence, home,
or domicil 212

Rule 45. — " Persons who would naturall}^ have heard
of him " within Rule 43 is not confined to a particu-
lar class ; they may be relatives or strangers . . .215

Rule 4G. — "Not been heard of" within Rule 43
means that none of the " [)ersons " referred to in
Rule 45 have heard any thing about him which should
or would raise a reasonable doubt in his or her mind
that he really was no more 216

Rule 47. — The absentee's " residence, home or domi-
cil," within Rule 44, refers to that place which he
first departed from, and does not include places where
he may have afterward resided or visited .... 222

Rule 48. — But the presumption will arise that the
death of the absentee has occurred before the expi-
ration of the seven years from being last heard of,
where any of the following circumstances are shown,
viz.: See Rules 49, 50, 51, 52 . . • .... 222

Rule 49. — That M'ithin that time he was in a des-
perate state of health 222

b

Xviil TABLE OF KULES.

PAGE

EuLE 50. — That -v^-ithin that time he embarked on a
vessel which has not since been heard of and is long
overdue, inquiries having been made at her ports of
departure and destination 223

EuLE 51. — That at some time within that period he
has encountered a " specific peril," which includes
not the ordinary dangers of travel or navigation, but
some unusual or extraordinary danger .... 230

Rule 52. — That his habits, character, domestic rela-
tions or necessities would have made it certain
that if alive within that perio(J, he would have re-
turned to or communicated with his residence, home
ordomicil 233

Rule 53. — But the presumption of death at the ex-
piration of seven years from being last heard of,
does not arise where it is improbable that the absen-
tee, even if alive,would or could have been heard of at
or would or could have communicated with his resi-
dence, home or domicil, or where in other judicial
proceedings the absentee is recorded as having been
alive subsequently to the end of the seven years

CHAPTER XI.

The Presumption of Survivorship.

RltLtE 54. — There is no presumption as to the order
in which two or more persons died, who are shown
to have perished in the same accident, shipwreck or
battle. The law regards them as having died at the
same instant 240

TABLE OF KULES. xLx

I'ACJE

Rule 55. — But where the calamity, though common
to all, consists of a series of successive events, sep-
arated from each other in i)oint of time and
character, and each likely to produce death upon
the several victims, accordinij to the decree of ex-
posure to it, the difference in age, sex, or health
may raise an inference of survivorship . . . . 24G

Rule 5G. — And the one of several in a common
danger which proved fatal to all, who was last seen
or heard alive within the operation of the cause
of death, is presumed to have survived the others . 246

CHAPTER XII.

The PRESUMmox of Idextity.

Rule 57. — Identity of name raises a presumption of
identity of person, w^hcre there is similarity of res-
idence or trade or circumstances or where the name
is an unusual one. But allter where the name is a
common one and there are several persons known of
the same name and of the same place 248

Rule 58. — The fact that the family name and initials
are the same raises no presumption that the parties
are the same 255

Rule 59. — "Where two persons of the same name oc-
cupy different positions or relations, the presumption
is that they are different persons 25G

Rule GO. — The initials preceding a surname are pre-
sumed to be the initials of a name and not the abbrevi-
ations of a title 258

XX TABLE OF RULES.

PAGE

Rule G1. — Where an interest is claimed, mere identity
of name to tlie person entitled is insuflBcient . . 258

Rule 62. — Where father and son, or two persons of
different ages, bear the same name, that name when
used is presumed to indicate the father or the elder
of the two, as the case may be 258

Rule 63. — And the identity of things may be presumed
from circumstances 261

CHAPTER Xin.

The Presumption of Intext.

Rule 64. — Where a person does an act, he is pre-
sumed in so doing to have intended that the nat-
ural and legal consequences of his act shall result . 262

Rule 65. — Where an act is criminal per se a criminal
intent is presumed from the commission of the act. 266

Rltl,e G6. — But when a specific intent is required to
make an act an offense, the doing of the act does not
raise a presumption that it was done with the spe-
cific intent 271

Rule 67. — The law presumes an intent from acts in
the absence of declarations, where the party is physi-
cally and mentally capable of forming an intent . 272

Rule 68. — A person is presumed to intend to do what
is within his right and power rather than what is
beyond them . . . . , 276

TABLE OF IIULES. XXI

CHAPTER XIV.

The Pkesumptioxs from the Course of Nature.

Rule G9. — The law presumes that in a particular case
tlio regular course of nature applied or was fol-
lowed 279

Rule 70. — A person is presumed to do Tvhat it is his
interest to do, and not to act against his interest.

CHAPTER XV.

The Presu^iptions of Payment and the Discharge of
Obligations.

Rule 71. — Independent!}' of a statute of limitations or
in the absence of one, after a lapse of twenty years
the law raises a presumption of the payment of bonds,
mortgages, legacies, taxes, judfrments, the due execu-
tion of a trust, and the performance of a covenant . 308

Rule 72. — The presumption under Rule 71 does not
arise from lapse of time alone short of twenty
years ; but a shorter time, in connection with other
circumstances, may raise a presumption of fact that
payment has been made 320

Rule 73. — A statute of limitation prohibits the action
after the legal period, but the presumption of law
arising from lapse of time may be rebutted. And
the term fixed by the statute of limitations can not be
shortened by lapse of time alone 327

XXli TABLE OF IIULES.

PAGE

EuLE 74. — The presumption of payment may be re-
butted under Rule 73 by showing (at anytime during
the period which creates the presumption) an ac-
knowledgment of the debt by the debtor ; or a pay-
ment of part of it, or a known or notorious insolvency
or incapacity of the debtor ; or by evidence of the re-
lation, situation, or intention of the parties ; or by
other circumstances ex})lanatory of the delay . . . 333

Rule 75. — A presumption of payment other than by
lapse of time will arise from the production of a re-
reipt from the creditor ; from the possession by the
debtor of the security or obligation, or from its can-
cellation ; from the payment of a later debt ; from
the passing of money between debtor and creditor
after the debt is due; from the custom of trade ; or
from other circumstances raising an inference of pay-
ment 344

Rule 76. — The presumption in Rule 75 does not
arise, where the debtor had the means of obtaining
possession of or of cancelling the obligation other
than by paying it, nor where the debt paid was not
the debtor's alone 355

Rule 77. — The presumption of payment is stronger
than the presumption of continuance, but weaker
than the presumption of innocence 356

CHAPTER XVI.

The Presujiptioxs Concerning Foreign Laws.

Rule. 78. — Where in one State or country the law
of another State or country is the subject of inquiry,
the law of the forum will be presumed to be the law
of the foreign State or country 358

TABLE OF liULES. XXIU

PACE

Rule 79. — Acts which aro criminal by the law of the
forum and arc malum in se^ will be presumed to be
crimes in a foreign State or country 3Gj

IxULE SO. — The term ''another State or country"
within Rule 78 does not (in the United States) in-
clude a State or country which has never been sub-
ject to the common law of England or a tribe or
nation uncivilized 3G6

Rule 81. — When one State or country adopts the
statute of another State or country which has re-
ceived a judicial construction in that country, such
construction is presumed to have been adopted with
the statute 3G9

Rule 82. — The term *Maw " within Rule 78 is re-
stricted to the common law of the forum, or the
commercial law and docs not include the statute
law of the forum 371

Rlxe 83. — And a rule of the common law to which
exceptions have been made by the courts will not be
presumed to be in force intact in the foreign State
or country 379

CHAPTER XVn.

The Presu:mptioxs from the iIlteratiox of instruments.

Rule 84. — Alterations, erasures and interlineations
appearing on the face of writings, whether under
seal or not, are presumed to have been made before
their execution or completion 381

XXIV TABLE OF nULES.

PAGE

EuLE 85. — But where the alteration is in a different
handwriting from the rest of the instrument ; or in a
different ink ; or in the interest of the party setting it
up ; or is suspicions on its face; or the execution of
the instrument is denied under oath, the burden of
proof rests on the party producing the instrument to
explain it to the satisfaction of the tribunal . . . 389

PART ly.

THE PRESmiPTIONS IN THE LAW OF REAL PROP-
ERTY.

CHAPTER XVin.

The PnEsmiPTioNS from Possession and Lapse of Time.

Rule 86. — ^Yhere it is shown that any person has for
a long period of time exercised any proprietary
right which might have bad a lawful origin by grant
or license from the public or from a private person,
and the exercise of which might and naturally would
have been prevented by the persons interested if it
had not had a lawful origin, the presumption arises
that such right had a lawful origin, and that it was
created by a proper instrument which has been
lost 403

Rule 87. — Where there exists no power to make a
grant, none can be presumed from long posses-
sion 417

TABLE OF RULES. XXV

PAGE

Rule 88. — "Wlien a person h in possession of prop-
erty and is shown entitled to the beneficial ownership
tliereof, the presumption is tliat every instrument
has been executed, and every thing has been done
to render his title legal 419

Rule 89. — And the possession of personal property
raises a presumption of title in, and ownership of,
the property by the possessor 420

PART y.

TIIE PRESU3IPTI0NS IN CRIMINAL CASES.

CHAPTER XIX.

The PEEsmiPTioxs ix Favor of I^^f0CENCE.

RuxE 90. — The law presumes the innocence of a per-
son charged with crime until the contrary is proved
beyond a reasonable doubt 432

Sub-Rlxe 1. — Fraud is never presumed unless such
circumstances are shown as icill legally justify such
an inference 439

Sub-Rule 2. — KAnd good character is presumed . . 442

Rule 91. — A prima facie case does not take away
from a defendant a presumption of innocence . . 445

XXVI TABLE OF KULES.

PAGE

EuLE 92. — Where there are conflicting presumptions,
the presumption of innocence will prevail against
the presumption of the continuance of life, the pre-
sumption of the continuance of things generally,
the presumption of marriage, the presumption of
chastity. But it is otherwise as to the presumption
of knowledge of the law and the presumption of
sanity 447

Rule 93. — The presumption of innocence may be
strengthened — as by the relation of the parties . 460

Rule 94. — But except for the purpose of the trial, a
presumption of guilt arises from the finding of an
indictment 460

Rule 95. — Where a person does an act which is un-
lawful unless he possesses a certain qualification, the
burden is on the prosecution to show that be does
not possess the requisite qualification, unless the
proof is peculiarly in his possession ; and that it may
involve him in proving his' innocence does not
change the rule 462

Rule 96. — A person is presumed to intend the natural
and legal consequences of his acts 467

Rule 97. — Where an act is criminal per se a
criminal intent is presumed from the commission
of the act 469

Sub-Rule 1. — But when a specific intent ^is required
to make an act an offense ^ the doing of the act does
not 7'aise a presumption that it loas done with the
specific intent 472

TABLE OF RULES XXVI I

PAGE

EuLE 08. — Possession, knowledge, or motive may
overthrow the presumption of innocence, and raise
in its place the presumption of guilt 478

Rule 90, — A person on trial for one crime can not bo
presumed guilty because he has, at another time,
committed a similar or different crime, and the latter
fact is not admissible in evidence against him . .481

Rule 100. — But to prove knowledge or intent or
motive a collateral crime may be shown . . . .487

Rule 101. — A separate crime from that charged may
be shown w'here it is necessary to prove that the
crime charged was not accidental 489

Rule 102. — A separate crime from that charged may
be proved where it forms part of the res gestce . . 400

CHAPTER XX.

The PRESUiiPTiONS in Disfavor of Innocence.

Rule 103. — "Where no motive for the commission of
a crime is shown, the presumption of the innocence of
the suspected person is strengthened. But a motive
being proved a presumption of guilt ma}^ arise . . 493

Sub-Rule 1. — A motive is proved hy showing the
desire of gain ^ the gratification of passion , or the
preservation of reputation^ accomplished or attempted
or able to be accomplished by the jjerpetration of the
crime charged 40c>

XXVlll TABLE OF RULES.

PAGE

EuLE 104. — Proof of opportunity possessed by the
accused to commit the crime may raise an inference
that he is the criminal. But another may have had
a better opportunity than even the accused; and the
possibility of such a circumstance should weaken the
presumption 506

Rule 105. — Proof of a former attempt by the accused
to perpetrate the same crime in the same or in a dif-
ferent manner raises an inference of his guilt as to
the latter crime 507

Kule 106. — Proof of preparations on the part of the
accused to accomplish the crime charged, or to
prevent its discovery, or to aid his escape, or to
avert suspicion from himself, raises a presumption
of his guilt 508

Sub-Rule 1. — But Rule 106 does not apply where the
preparations may have been innocent , or for the exe-
cution of sometJiing (Liferent though illegal^ or where
the crime for the execution of which the preparations
were made may have been subsequently frustrated or
voluntarily abandoned 510

Rule 107. — Threats or expressions of ill will on the
part of the accused concerning the victim are rele-
vant on the question of his guilt 511

SuB-RuLK 1. — But threats^ though made by the ac-
cused, are no evidence of his guilt where a person
other than himself may have carried them out . .512

Rule 108. — Possession by the accused of the means
for committing the crime charged raises a presump-
tion of his guilt. And this presumption mny be
strengthened or weakened according to the occupa-
tion, character or sex of the accused 513

TABLE OF RULES. XXIX

PAGE

EuLE 109. — The possession by the accused of tlic
fruits of the crime raises a presumption of his guilt 515

Sub-Rule 1. — la prosecutions for larceny or rohhery,
the recent possession of the stolen property raises the
presumption that the possessor is the thief . . . .518

Sub-Rule 2. — Bnta reasonable explanation by the ac-
cused of his possession overthrows the presumption^

• and casts the burden on the prosecution; provided the
explanation is not inconsistent with the identity of the
property 522

Sub-Rule 3. — What is or is not ^^i-ecent" within
Sub-Rule 1 depends upon thecost^bulk, or transfer-
ability of tJie article or property stolen 524

Rule 110. — From proof of a sudden change having
taken place in the life and circumstances of the ac-
cused subsequent to the crime, a presumption of his
guilt may arise 529

Rule 111. — The fact that the accused has given false,
inconsistent or contradictory accounts of the circum-
stances of the crime or of his relation to the act,
raises the presumption that he is the criminal . . 530

Rule 112. — Tlvc fact that the accused had attempted to
stifle or thwart the investigation of the crime raises
the presumption that he is the criminal .... 533

Rule 113. — Fear, exhibited by the accused, raises a
presumption of guilt. But no presumption can arise
•whore the fear may be on account of another act or
crime 534-

XXX TABLE OF EULES.

PAGE

EuLE 114. — The flight of the accused, or his attempts
to esc:ipe, raise a presumption of his guilt; unless
it appear that the act was for another reason . . 537

Rule 115. — The destruction, concealment, or fabri-
cation of evidence by the accused raises a presump-
tion of his guilt — omnia proesumuntur contra spolia-
torem 539

EuLE 116. — Silence on the part of the accused when
charges are made against him in his presence and
hearing, raises a presumption of guilt ; unless the
charges are made in the course of a judicial interro-
gation. But the failure of the accused to produce
on his trial evidence in his favor and within his power
raises a presumption of guilt 545

PART \1.

GENERAL RULES.

CHAPTER XXI.

The General Rules as to Presumptions.

Rule 117. — A " presumption " is a rule of law that
courts or juries shall or may draw a particular infer-
ence from a particular fact or from parLicular evi-
dence, unless and until the truth of such inference is
disproved 555

TABLE OF RULES. XXXI

PAGE

Sub-Rule 1. — A presumption of laxo is a rule of laiu
(hat a particular inference shall be drawn hu a court
or juri/ from a particular circumstance 555

Sub-Rule 2. — A presumption of fact is a rule of law
that a fact otherivise doubtful mar/ be inferred from a
fact which is proved 555

Rule 118. — A presumption must be based upon a fact,
and not upon inference or upon another presump-
tion 569

Rule 119. — A presumption can not contradict facts or
overcome facts proved 576

Rule 120. — A rebuttable presumption of law being
contested by proof of facts showing otherwise, which
are denied, the presumption loses its value, unless
the evidence is equal on both sides, in which case it
should turn the scale 576

Rule 121. — And a presumption is neither continuous
nor retroactive 579

Rule 122. — In the case of conflicting presumptions the
presumption of payment is stronger than, and will
prevail against, the presumption of continuance ; the
presumption of innocence is stronger than, and will
prevail against, the presumption of payment, of the
continuance of life, of the continuance of things
generally, of marriage, and of chastity ; the presump-
tion of knowledge of the law is stronger than, and
will prevail over, the presumption of innocence, and
the presumption of sanity is stronger than, and will
prevail over, the presumption of innocence . . . 582

TABLE OF CASES CITED.

A.

Abbott V. Johnson, 47 Wis. 239. p,

86,
Abell V. Douglas, 4 Denio, 305. p.

858.
Abraras v. Pomeroy, 13 111, 133, p,

89.
Acker v. Ledyard, 8 Barb. 514, p.

381.
Ackerman, Re, 3 Redf, 521. p. 235,
Adam v. Kerr, 1 B. & P. 3G0. p. 83.
Adams v. Clark, 8 Jones (L,), 50.

p. 177,
Adams v. Jones, 39 Ga. 508. p, 200.
Adams' Case, 11 Leg. Obs. 415. pp.

498-509.
Adams' Case, Mrs., 5 Leg. Obs. 59.

p. 498,
Adams v. Leavens, 20 Conn. 73. p.

85,
Addington v. Allen, 11 Wend. 374,

p. 34.
Aiken v. Altoona Iron Wks., 43 Ga.

404. p. 58.
Aikon V. State, 10 Tex, App, 610. p.

637.
Alabama, etc., Co. v. Sanford, 30 Ala.

703. p. 353.
Alexander v. State, 50 Ga. 478, p.

61,
Alexander v. Walter. 8 Gill, 237 ; 50

Am. Dec. 688. p. 404,
Alford V. Baker, 53 Ind. 279. p, 358.
Attleborough v. Middleborough, 10

Pick. 378. p. 350.
Allen V. Lyons, 2 Wash. C. C, 475.

p. 197.
Allen r Public Administrator, 1

Bradf. 378, p. 179.

c

Allen V. Watson, 2 Hill (S. C), 319.

p. 370.
Allison V. Thomas, 44 Ga. 049, p, 58.
Almy V. Heed, 10 Cush. 421. p. 160,
Alsop V. Bontrell, Cro. Jac. 511, p.

303.
Alston r. Alston, 4 S, C. 110. p. 55.
Alvord V. Baker, 9 Wend. 823. p.

353.
Anderson v. Blythe, 54 Ga. 507. p,

177.
Anderson v. Clay, 1 Stark. 405. p.

175.
Anderson v. Parker, 6 Cal. 197. p.

197.
Anderson v. State, 42 Ga. 9, p. 35.
Anderson v. Sutton, 2 Duv. 480. p.

50.
Anderson v. Weston, 6 Bing, (N, C.)

296. pp. 89, 388,
Andrews v. Motley, 12 C. B. (x. s.)

520. p, 83.
Androscoggin Bk. v. Kimball, 10

Cush. 374. p. 18.
Andrus v. Foster, 17 Vt. 556. p. 75.
Annesley v. Earl of Anglesea, 17 How.

St. Tr. 1430. p. 142.
Anonymous, 2 Hayw, (S, C.)*]34. p.

200.
Anslcy v. Carlos, 9 Ala. 979. p. 69.
Apgar's Case, 37 N, J. Eq, 501. p.

303.
Apothecaries' Co. v. Bentley, Ey, &

M. 159. p. 465,
Appleby v. Brock, 70 ?.In. 315. p. 30,
Apthorp V, Nerth, 14 Mass. 107. p-

34.
Arayo v. Curreel, 1 La. 510. p. 170.
Archey v. Stephens, 8 Iiul. 411, p.

179.

(xssiil)

XXXIV

TABLE OF CASES CITED.

Ardcn's Case, Mrs., 5 Leg. Obs. 59.

p. 508.
Arent v. Squire, 1 Daly, 347. p. 55.
Armory r. Uelamarie, 1 Smith L. C.

357. pp. 135, 141, 143, 540.
Armstrong v. Uodojcs, 2 B. Mon. 70.

pp. 93, 434, 451, 587.
Armstrong v. Mudd, 10 B. Mon. 144 ;

60 Am. Dec. 545. p. 34.
Arnold v. State, 9 Tex. (App.) 40G.

pp. 537, 539.
Arnold v. Stevens, 24 Pick. 106 ; 35

Am. Dec. 305. p. 405.
Ashbury v. Sanders, 8 Cal. 62. pp.

200, 231.
Ashe V. De Rosset, 8 Jones (L.), 240.

pp. 70, 185.
Ashe V. Lanham, 5 Ind. 434. p. 57.
Askew V. Odenheimer, 1 Bald. 390.

pp. 152, 153.
Astley V. Astley, 1 Hagg. Ecc. 720.

pp. 262, 467.
Atchison v. McCuUoch, 5 Watts, 13.

p. 248.
Atchley v. Sprigg, 33 L. J. (Ch.) 345.

p. 118.
Atkins V. Warrington, Best Ev. 412 ;

Chitty Pldg. 616. p. 194.
Atkinson v. Atkinson, 15 La. Ann.

491. p. 370.
Atkyns v. Horde, 1 Burr. 106. p. 83.
Atty.-Gcn. v. Deau of Windsor, 24

Beav. 679. p. 124,
Atty.-Gen. u.Emeline Hosp., 17 Beav.

390. p. 417.
Atty.-Gen. v. Halliday, 26 U. C. Q. B.

397. p. 122.
Atty.-Gen. v. Le Merchant, 2 Term

Eep. 201. p. 137.
Atty.-Gen. v. Parnther, 3 Brown C. C.

.441. p. 179.
Atzroth V. State, 10 Fla. 207. p. 518.
Aubert v. Walsh, 4 Taunt. 493. p.

804.
Augustine v. Doud, 1 111. (App.) 588.

p. 35.
Austin V. Austin, 50 Me. 74. p. 40.
Austin V. Bailc}', 87 Vt. 219. p. 419.
Austin V. Jordan, 35 Ala. 642. p. 321.

Autry V. Autry, 37 Ala. 618. p. 304.
Avery v. Bowden, 6 E. & B. 973. p.

67.
Averett v. Thompson, 15 Ala. 678.

p. 358.
Ayres v. Robins, CO Gratt. (Va.) 105.

p. 36.

B.

Babb V. Clemson, 10 S. & R. 424. p.

386
Baecigalupo's Case, 33 Gratt, 807. p.

459.
Bach V. Cohn, 3 La. Ann. 103. p.

536.
Bacon v. Mclntyre, 8 Mete. 88. p.

316.
Bacon v. Smith, 2 La. Ann. 441. p.

1(J7.
Bagley v. McMickle, 9 Cal. 449. p.

160.
Bailey v. Bailey, 36 Mich. 185. pp.

197, 212, 215.
Bailey v. Bidwell, 13 M. & W. 76.

pp. 77, 79.
Bailey v. Jackson, 16 Johns. 210; 8

Am. Dec. 309. p. 342.
Bailey v. Shaw, 24 N. H. 300. p.

141.
Bailey v. Taylor, 11 Conn. 531. pp.

385. 399.
Baker v. Coe, 20 Tex. 429. p. 55.
Baker v. Melburn, 2 M. & W. 853. p.

89.
Baker v. Prewett, 04 Ala. 551. pp.

34, 419.
Baker v. State, 4 Ark. 56. pp. 176,

487.
Bakewell's Patent, In re, 15 Moore

P. C. 385. p. 72.
Balaam v. State, 17 Ala. 457. pp. 479,

499.
Balance v. Underbill, 4 111. 453. p.

54.
Balbec v. Donaldson, 2 Grant's Cas.

460. p. 248.
Baldwin r. Bordheimer, 48 Cal. 433

(1874). p. 53.

TABLE OF CASES CITED.

XXXV

Bii:i V. Taylor, 1 C. & P. '117. p

83.
Bulicw V. Clark, 2 Ired. L. 21. p

179.
Banbury Peerage, 1 Sim. & Stu. 157

pp. Ill, 112. 110.
Bancroft t>. Holton, 59 N. H. 141. p

855.
Bangor v. Brunswick, 30 Me. 398. p

Bangor, etc., K Co. v. Smith, 47 Me

45. p. 61.
Bk. V. Daudridge, 12 Wheat. 64. p

60.
Bk. of Ala. 17. Livingston, 2 La. Ann

915. p. 86.
Bk. of Orleans v. Barry, 1 Denio, 116

p. 77.
Bk. of Washington i>. Triplett, 1 Pet

25. pp. 17, 73.
Banks v. Bales, 16 Ind. 423. p. 58.
Banning v. Griffin, 15 East, 293. p.

197.
Barber v. Lyon, 22 Barb. 62. p. 122.
Bareli v. Lytic, 4 La. Ann. 557. pp.

190, 580.
Barker v. Keets, 1 Freem. 251. p.

84.
Barnard v. Heydrick, 49 Barb. 62. p.

36.
Earned v. Earned, 21 N. J. (Eq.) 245-

p. 320.
Barnes v. Mobley, 21 Ala. 232. p.

404.
Barnes V. Webster. 16 Mo. 258; 57

Am, Dec. 232. p. SOS.
Barnett v. Torrance, 26 Ala. 403. pp.

820. 421,428, 424.
Barnett v. Wolf, 70 111. 76. p. 35.
Barney v. Seeley, 88 Wis. 381. p.

142.
Barns v. Hatch, 3 N. H. 304. p.

804.
Barnum v. Barnum, 42 Md. 253. p.

106.
Enrony of Sale, The, 1 H. L. Cas.,

607. p. 117.
Barton v. State, 18 Ohio, 221. p.

483.

Barrett v. Williamson, 4 ilcLoan,

589. pp. 17, 73.
Barrington v. Bk. of Washington, 14

S. & R. 422. p. 380.
Bassplt V. Porter, 10 Cush. 418. p. 55.
Bastard v. Truch, 3 Ad. & Ell. 451.

p. 35.
Battin v. Bigelow, 1 Pet. C. C. 453.

p. 192.
BatLjo V. Mobile, 9 Ala. 234 ; 44 Am.

Dec. 438. p. 68.
Battles V. Hoi ley, 6 Me. 145. p. 321,
Baiii^han v. Graham, 1 How. (Miss.)

220. p. 370.
Barne's Case, 5 Coke, 986. p. 119.
Baxter v. Durch, 20 Me. 434 ; 50 Am.

Dec. 602. p. 7.
Bayliffe v. Butterworth, 1 Ex. 23.

pp. 16, 75.
Beale v. Com., 25 Pa. St. 11. p. 37.
Beall V. Leverett, 82 Ga. 105. p. 81.
Beall V. Lynn, 9 Har. & Johns. 336.

p. 427.
Beals V. Clark, 13 Gray, 18. p. 263.
Bean v. Briggs, 4 Iowa, 464. p. 370.
Beamau v. Kussell, 20 Vt. 205; 49

Am. Dec. 775. pp. 882, 388,
Bcasney, Re, L. R. 7 Eq. 498. p. 235.
Bi'atty V. Gregory, 17 Iowa, 100. pp.

17, 73.
Beatty v. Michon, 9 La. Ann. 102.

p. 261.
Beavers v. State, 58 Ind. 530. p. 552.
Becton v. Ferguson, 22 Ala. 599. p.

303.
Bedard v. Hall. 44 111. 91. p. 58.
Bedell V. Carll, 33 N. Y. 581. p.

347.
Beam an v. State, 5 Blackf. 1G5. p.

35.
Beers v. Broome, 4 Conn. 247. p. 303.
Beeson v. Wiley, 28 Ala. 575. p. 69.
Belkin v. Rhodes, 76 Mo. 643. p. 30.
Bell V. Frankis, 4 Man. & Gr. 447.

p. 134.
Bell V. Hagarstown Bk., 7 Gill, 227.

p. ISO.
Bell V. Ilearnc, 10 La. Ann. 515. p.

124.

XXXVl

TABLE OF CASES CITED.

Bell V. Kennedy, L. 11. 1 Sc. App.

820. p. 173.
Bel] V. Young, 1 Grant's Cas. 175. p.

163.
Bellas V. Levan, 4 Watts, 295. p. 308.
Belo V. Spach, 85 N. C. 92. p. 336.
Belt V. Davis, 1 Cal. 134. p. 85.
'Beltzhover v. Blackstock, 3 Watts,

26. p. 77.
Bemis v. McKenzie, 13 Fla. 553. p.

372.
Bender v. Montgomery, 8 Lea, 586.

p. 320.
Bendlt v. Auditors Wayne Co., 20

Mich. 176. p. 49.
Benhams Trusts, Re, 87 L. J. (Ch.)

205. p. 201.
Bennett v. Libhart, 27 Mich. 489. p.

255.
Bennett v. Walker, 23 111. 97. p. 304.
Benning v. Nelson, 23 Ala. 801. p.

304.
Bensley v. Atwill, 12 Cal. 231. p. 303.
Benson v. Olive, 2 Strange, 920. p.

194.
Benthall v. Judkins, 13 Mete. 265, p.

90.
Bentley's Appeal, 99 Pa. St. 504. pp.

819, 336.
Bergin v. State, 33 Ohio St. 115. p.

459.
Berry v. Alderman, 14 C. B. 95. p. 77.
Berry v. Anderson, 22 Ind. 36. p.

419.
Berry v. Philpot, 2 Myl. & K. 349.

p. 113.
Berryman v. Wise, 4 Term Rep. 360.

p. 49.
Berthelemy v. Johnson, 3 B. Mon.

90; 38 Am. Dec. 179. p. 404.
Belts V. Bagley, 12 Pick. 572. p. 30.
Betts V. Jackson, 6 Wend. 173. p.

147.
Bilberry v. Mobley, 20 Ala. 260. p.

69.
Bird V. Inslee, 23 N. J. (Eq.) 303. p.

320.
Birlwy v. McMakin, 04 Pa. St. 343.

p. 3i0.

Birmingham, Borongli of, v. Ander-
son, 40 Pa. St. 507. p. 403.
Bishop V. Chambre, 3 C. & P. 55.

pp. 388, 890.
Bishop, Re, 1 Sw. & Tr. 303. p. 230.
Bissell V. Jaudon, 16 Ohio St. 496.

p. 333.
Bissell V. Morgan, 11 Cush. 198. p.

77.
Bissell V. Nooney, 33 Conn. 441. p.

84.
Bizzell V. Williams, 8 Ark. 138. p. 34.
Black V. Ward, 27 Mich. 191. p. 10.
Black V. Wright, 9 Ired. L. 447. pp.

126, 127.
Black V. Carpenter, 3 Bast. 350. p.

337.
Blackburn v. Crawford, 3 Wall. 175.

p. 106.
Blackwell v. Blackwell, 33 Ala. 571.

p. 320.
Blade v. Noland, 12 Wend. 173. p.

157.
Blair v. Chapman, 62 Ala. 58. p. 34.
Blaisdell v. Cowell, 14 Me. 370. p. 93.
Blair v. Marks, 27 Mo. 579. p. 403.
Blair v. Stale, 52 Ala. 344. p. 39.
Blake v. Fash, 44 111. 304. p. 160.
Bhike V. State, 3 Tex. App. 581. p,

537.
Blanchard v. Lambert, 43 Iowa, 228

pp. 93, 435.
Blanchard v. Young, 11 Cush. 341

p. 54.
Blanch et v. Foster, 2 Ves. Sr. 205

p. 145.
Blimey v. Sergeant, 1 Mass. 335. p

280.
Blatch V. Archer, Cowp. 63. p. 120
Bliss V. Brainard, 41 N. H. 256. p. 20
Blount V. State, 49 Ala. 381. p. 545
Body V. Jewson, 33 Wis. 402. p. 174
Boehm v. Wood. p. 318.
Bogue V. Bigelow, 29 Vt. 179. p. 248
Bolster ■;;. Cushman, 84 Me. 428. pp

98, 276.
Bond V. Searrell, 3 Burr. 1773. p. 87,
Bond V. State, 23 Ohio St. 849. p

459.

TABLE 01=' CASKS CITED.

XXXVU

Bond V. Warren, 8 Jones L. 191. p.

481.
Bonnerr. Young, 68 Ala. 35. p. 310.
Bonsall V. State, 35 Ind. 400. p. 483.
Boon V. Pierpont, 28 N. J. (Eq.) p.

808.
Booth V. Booth, 7 Conn. 350 (1829).

p. 53.
Boothby v. Stanley, 34 Mo. 515. p.

882.
Boswell's Case, 20 Gratt. 8G0. p.

459.
Bosworth V. Vandewalker, 53 N. Y.

597 p. 23.
Bott V. Wood, 56 Miss. 136. pp. 134,

152, 153, 154.
Boulware v. Witherspoon, 7 Kich.

450 p. 55.
Bowden v. Evans, 2 Hayw. (S. C.) 222.

p. 200.
Bowden v. Henderson, 2 Sra. & G.

800. p. 237.
Bowen v. Bowen, 2Bradf. 336. p. 75.
Bowie V. Poor School Soc., 75 Va.

300. p. 344.
Bowles V. Bingham, 8 Munf. 589. p.

108.
Bowley v. Barnes, 8 Q. B. 1037. p.

50.
Bowman v. McElroy, 15 La. Ann.

903. p. 20.
BoycetJ. L;ike, 17 S. C. 481. p. 308.
Boyoe«. Owens. 1 Hill, 10. p. 418.
Boyd W.Harris, 2 MJ. Ch. 210. p.

31.5.
Boyd V. Mclver, 11 Ala. 822. pp. 77,

79.
Boyd V. Roed, 6 Hcisk. 631. p. 352.
Boyers v. Pratt, 1 Humph. 00 p. 14.
Boykin v. Boykin, 70 N. C. 202. p.

EriKken v. Miller, 4 W. & S. 102. p.

347.
Brackenridgo v. Di.wson, 7 Ind. 383.

p. 37.
Bradford's Case, Phill. Cas, p. 511.
Bradish v. Bliss, 85 Vt. 826. p. 438.
Bradlaugh v. DeEeu, L. Pv. 3 C. P.,

28 J. p. 83.

Bradley v. Bradley, 4 AVliart. 17:].

pp. 200, 201.
Bradley v. The Now World, 1 Cal.

875. p. 420.
Bradley v. Mut. B-n, L. Ins. Co., 3

Lans. 341. p. 358.
Braithwaito v. Coleman, 1 Uarr. it

Wall. 229. p. 133.
Brandon v. Snows, 2 Stew. (Ala.) 255

(1830). p. 53.,
Brandon r. Woodthorpo, 10 Bcav.

403. p. 303.
Brcck V. Cole, 3 Sandf. 80. p. 89.
Breckinridge v. Walters, 4 Dana, 027.

p. 405.
Breed v. Mitchell, 48 Ga. 533. p.

102.
Breed v. Pratt, 18 Pick. 115. p. 280,
Breiden v. Paff, 12 S. & R. (Pa.) 430.

pp. 448, 583.
Brennan v. Shinklo, 89 111. GOl. p.

35.
Brent v. State, 43 Ala. 297. pp. 10,

454.
Breton v. Cope, 1 Peake, 43. p. 304.
Brewer v. Browne, 68 Ala. 210. p.

67.
Bicwer v. Knapp, 1 Pick. 337. p.

350.
Brewster v. Striker, 2 N. Y. 19. p.

55.
Brice v. Smith, Willis, 1. p. 84.
Bridgeton v. Bennett, 23 Me. 4J0. p.

50.
Brien v. Hart, G Humph. 131. pp. 27,

29.
Brig.^s V. Taylor, 35 Vt. 57. pp. 47,

40.
Brigg's Appeal, 93 Pa. St. 485. p.

821.
Brinihall v. Van Campen, 8 Minn. 13.

p. 370.
Brinyea v. State. 5 Ala. 241. p. 459.
Bri:jbaMe v. Ducres, 5 Taunt. 1-13. p.

6.
British, etc., Assur. Co., In re, 1 De

G. J. & S. 3.5. p. 82.
Broad well v. Stiles, 8 K J. (L.) 158.

p. 100.

XXXVUl

TABLE OF CASES CITED.

Brobst V. Brock, 10 ATall. C19. p.

316.
Brock V. Savage, 31 Pa. St. 422, pp.

SOS, 408.
Brock V. State, 26 Ala. 104. p. 48G.
Brombridge v. Osborne, 1 Stark. 374.

p. 347.
Brooke v. Townshend, 7 Gill, 31. p.

179.
Brooks V. Douglass, 32 Cal. 209. p.

p. 35.
Brooks V. Walker, 3 La. Ann. 150.

39.
Brotherline v. Hammond, 69 Pa, St.

128, p. 248.
Broughton v. Eandal, Cro. Eliz. 503.

p. 247.
Brown v. Austin, 35 Barb. 341. p.

304.
Brown v. Beers, 6 Conn. 215. p. 5.
Brown v. Benight, 3 Bluckf. 39; 23

Am. Dec. 372. p. 250.
Brown v. Burnham, 28 Me. C8. p.

173.
Brown V. Connelly, 21 Ark. 140. p.

84.
Brown v. Connelly, 5 Blackf. 390. p.

47.
Brown v. Gill, 49 Ga, 549. p. 34.
Brown v. Haak, 48 Mich. 229. p. 36,
Brown v. Jewett, 18 N. H. 230. p.

212.
Brown v. Kentfield, 50 Cal. 129. p.

35.
Brown v. Kimball, 12 Vt. 617. p.

507.
Brown v. King, 5 Mete. 173. p, 163.
Brown v. McKiiiney, 9 Watts, 565;

86 Am. Dec. 139, p. 403,
Brown v. Motz, 33 111. 339. p. 248.
Brown V. Neilson, 1 Caines, 625. p.

227.
Brown v. Oattis, 55 Ga. 416, p. 123,
Brownell v. Palmer, 22 Conn. 121. p.

C7.
Brown V. Prugle, 4 Hare, 124. p.

803.
Brown V. San Francisco Gas Co., 58

Cal. 426. p. 358.

Brown v. Schock, 77 Pa. St. 471. p.

121.
Brown v. Wood, 17 Ma?s. 68. p. 40,
Brubaker v. Taylor, 76 Pa. St. 83. p.

322.
Bruco V. Atkinson, 22 Ark. 363. p.

439.
Bruce v. Holden, 21 Pick. 187. p. 54.
Bruce v. Nicopulo, 11 Ex. 129. p. 56.
Brunswick v. McKean, 4 Me. 508. p,

569.
Bryant v. Stillwell, 24 Pa. St, pp. 314,

122, 140.
Bryson v. Chisholm, 56 Ga. 596. p. 35.
Buchaiiiian v. Rowland, 6 N. J. L. 721.

p. 310.
Buck V. Buck, 6 Ecc. & Mar. 581. p.

387.
Buckeye, The, 7 Biss. 23. p. 102.
Buckingham v. Gregg, 19 Ind. 401.

p. 358.
Buckmaster v. Job, 15 111. 329. p. 54.
Buckner v. Bush, 1 Duv. 394. p. 54-
Bueld V. Bettison, 21 Ark. 583 (1860).

p. 53.
Budd V. Brooke, 3 Gill (Md.), 198;

43 Am. Dec. 321. p. 404.
Bullen V. Arnold, 31 Me. 583. p. 36.
BuUen v. Kunnells, 2 N, H. 255; 9

Am. Dec. 55. p. 404.
Bundy V. Hart, 46 JIo. 462. p. 373.
Bunker v. Hand, 19 Wis. 254. p. 40.
Bunker v. Shed, 8 Mete. 150. p. 90.
Burdge v. Smith, 14 Cal. 380. p. 420.
Burford v. McCue, 53 Pa. St. 431. p,

255, 257.
Burge V. State, 62 Ga. 170. p. 35.
Burling v. Patterson, 9 C. & P, 417,

p. 83,
Bunihara v. Ayer, 35 N. H. 351. p,

386,
Burnham v. Webster, 19 Me. 232, p.

77.
Burr V. Sim, 4 Whart. 150; S3 Am.

Dec. 50. pp. 202, 230.
B irr V. Williams 23 Ark. 244. p. 74.
Burrett U.Dickson, 8 Cal. 113. pp. 19,

264.
Burton v. Blin, 23 Vt. 152. p, 23.

TAIiLE OF CASES CITED.

XXXiX

Burton V. Mason, 23 Iowa, 8ri2. p.

Burlon v. Scott, 3 Rand. 389. p.

280.
Bury V. Philpot, 2 Myl. &K. 349. p.

112.
Busli V. Guion, 6 La. Ann. 797. p.

1-18.
Bush V. Harrison, 70 III. 480. p. 35.
Bush V. Seaton, 4 Ind. 622. p. 420.
Bush V. Stato, 52 Ala. 13. p. 39.
Butcher V. Bk. of Brownesville, 2 Kas.

80. p. 27.
Butler V. Ford, 1 Cr. & M. 603. p. 47.
Buller V. Ins. C-^., 14 Ala. 777. p-

804.
Butler V. Livingston, 15 Ga. 5G5. p"

6.
Butler V. Mountgarvet, 7 U. L. Cas.

617. p. 89.
Butler V. Winona Mill Co., 28 Minn.

205. p. 36.
Byrd v. Fleming, 4 Bibb, 145. p. 2G1.
Byrd v. Tucker, 3 Ark. 451. p. 89.

. c.

Cabot V. Given, 45 Me. 144. p. 60.
Cadge, Re, L. R. 1 T. & D. 543. p.

388.
Cuhalan v. Monroe, 70 Ala. 271. p.

358.
Calais Steamboat Co. v. Van Pett,

2 Black, 273. p. 23.
Caldwell V. Gamble, 4 Watts, 292.

p. 89.
Caldwell V. State, 5 Tex. 19. p. 466.
Call V. Allen, 1 Allen, 137. p. 461.
Callaman v. Hurley, 93 U. S. 387.

p. 5G3.
Callisou V. Autry, 4 Tex. 371. p.

34.
Cainboise v. Moffet, 2 Wash. C. C.

104. p. 14.
Cambridge v. Lexington, 17 Pick. 222.

p. 403.
Cameron v. North W. Ins. Co., 29

Hun, 470, p. 370.

Campbell v. Hays, 1 Ind. 517. p.

353,
Campbell v. Miller, 3 3Iart. (x. s.)

149. p. 390.
Campbell v. Reed, 24 Penn. St. 498.

p. 193.
Campbell v. Smith, 3. Halst. (N. J.)

140 ; 14 Am. Doc. 400. p. 405.
Campbell v. Wallace, 40 Mich. 320.

p. 248.
Canal Bk. v. Templeton, 20 La. Ann.

141. p. 77.
Cancemi v. People, 10 N. Y. 501. p.

443.
Cannon v, Mathis, 10 Heisk. 575. p,

342.
Canonie v. Fowler, 3 Wend. 173. p.

870.
Caress v. Tattersall, 2 !Man. & Gr.

891. p. 388.
Cargile v. Wood, 63 Mo. 56. pp. 104,

176.
Carneal v. Day, Litt. Scl. Cas. 492-

p. 142.
Carotti v. State, 42 Miss. 334. p.

450, 586.
Carr v. Miner, 92 HI. 604. p. 3-5.
Carroll v. Bowie, 2 H. & McU. 457.

p. 347.
Carroll v. Carroll, 20 Tex. 731. p.

93, 435.
Carroll v. Com., 84 Pa. St. 107. p.

488.
Carroll ». Peake, 1 Pet. 78. p. 41.
Carroll v. Quynn, 13 Md. 379. pp. 99,

440.
Carroll v. State, 23 Ala. 28. pp. 2G6,

409, 473.
Carson v. Cent. R. Co., 35 Cal. 325.

pp. 94, 277, 436.
Carson v. Lineberger, 70 N. C. 173.

p. 344.
Carter u. Reals, 44 N. H. 408. p. 120.
Carter u. Blanton, 33 Miss. 2'Jl. p.

86.
Carter u. Jones, 5 Ired. (Eq.) 190; 19

Am. Dec. 424. p. 34.
Cameron v. State, 14 Ala. 546 ; 48 Am. I Carter v. State, 12 Tex. App. 500. p.

Dec. 111. pp.143, 583.

459.

xl

TABLE OF CASES CITED.

Carter r. Tiiiicum Fishing Co., 77 Pa.

St. 310. 404.
Cartwright v. Cartwright, 1 Phill.

190. p. 179.
Gary v. Gerrish, 4 Esp. 9. p. 304.
Case V. Case, 17 Cal. 598. p. 451,

5S7.
Case V. Colston, 1 Mete. (Ky.) 145.

p. 54.
Casey v. State, 6 Mo. 646. p. 480.
Casey r. Inloes, 1 Gill, 430; 39 Am.

Dec. 658. p. 404.
Castanedou. State, 7 Tex. (App.) 584.

p. 36.
Casteel v. Casteel, 38 Ark. 477. p.

34.
Castleberry v. Pearce, 2 Stew. & P.

14. p. 34.
Cates V. Loftus, 3 A, K. Marsh. 202.

p. 248.
Catlin V. Hansen, 1 Duer, 323. p.

77.
Cauble V. R_van, 26 Ind. 207. p. 75.
Candill v. Tbarp, 1 G. Greene, 94. p.

36.
Caujolle V. Ferris, 23 N. T. 90. p.

108.
Caunce v. Ptigljey, 3 M. & W. 68. p.

34.
Centre Bank v. Heydom, 48 K T,

200. p. 308.
Cesure v. State, 1 Tex. App. 19. p.

480.
Chaffee v. U. S. 18 Wall. 510. p.

1S8.
Chamberlain v. Darrington, 4 Port.

515. p. 34.
Champion v. Sessions, 2 Nev. 271.

p. 36.
Chaplin v. La3'ton, 18 Wend. 407 ; 31

Am. Dec. 382. p. 6.
Chandler v. Barrett, 21 La, Ann. 58.

p. 179.
Chapin v. Dobson, 78 N. Y. 74. p.

870.
Chapman v. Cooper, 5 Rich. (L.) 452.

pp. 201, 448, 449, 583, 584.
Cliapman v. lloward, 3 Lea, 303. p.

65.

Chapman v. Loomis, 36 Conn. 459.

p. 320.
Chapman v. Mayor of Macon, 55 Ga.

500. p. 72.
Chapman v. Mcllwrath, 71 Mo. 44.

p. 93.
Chase v. Alliance Ins. Co., 9 Allen,

311. p. 870.
Chase v. Chase, 6 Gray, 157. p. 263.
Chase v. Heaney, 70 111. 208. p. 58.
Chase v. People, 40 111. 807. p. 459.
Cheney v. Watkins, 1 H. & J. (Md.)

327. p. 403.
Chess V. Chess, 1 Pa. St. 32. p. 303.
Child V. Moore, 6 N. H. 33. p. 344.
Childrens v. Saxby, 1 Vern. 207. p.

115.
Childs V. Dolan, 5 Allen, 319. p. 564.
Chiles V. Conley, 2 Dana, 21. p. 403.
Chislie's Case, 9 Lg. Obs. 180. p. 499.
Choate v. Ilathaway, 73 111. 519. p*

35.
Chrisman v. Gregory, 4 B. Mon.

474. p. 30.
Christ ■;;. People, 3 Col. 394. p. 35.
Christmas v. Whonyates, 3 Swab. &

Tr. 81. p. 387.
Christopher v. Sparks, 2 Jac. & W.

235. p. 316.
Church V. Gilman, 15 Wend. 656. p.

304.
Church V. Rowoll, 49 Me. 367. p.

173.
Churchward v. Coleman, L. R. 1 Q. B.

173. p. 538.
Cicely v. State, 13 S. & ]\I. 220. p.

510.
Citizens Mut. Ins. Co. v. Sortiveet, 8

Allen, 217. p. 61.
City of Alleghany v. Nelson, 25 Pa.

St. 332. p. 55.
Citj'of Logansport i;. Wright, 25 Ind.

5"l2. p. 54.
City of Louisville v. Ilyatt, 2 B. Mon.

180. p. 55.
City of New Orleans v. Gottschalk,

11 La. Ann. 6. p. 54.
City of New Orleans v. Ilalpin, 17

La. Ann. 185. p. 54.

TABLE OF CASES CITED.

xli

City S;iv. Bk. v. CiJwell, 20 Barb.

3:^5. p. S72.
Clallin V. Mulono, 9 B. Mon. 48G; CO

Am. Doc. 525. p. 404.
Clnpp V. Thom-18, 5 Allfii, 158. p. 54
Chiridge v. Kleet, 15 Pa. St. 255. p

89.
Clark t'. Alexander, 8 Scott N. R. IGl

p. 175.
Clark V. Dutcher, 9 Cow. G74, p. 557
Clark V. Eckstein, 22 Pa. St. 507. p

.390.
Clark V. Hopkins, 7 Johns. 55G. p,

822.
Clark V. Miller, 9 AVend. 628. p. 123
Clark V. Pease, 41 N. II. 414. p. 77
Clark V. Perriam, 3 P. Wms. 334.

pp. 102, 276.
Clark V. Rogers, 2 Me. 147. p. 381
Clark V. Schneider, 17 Mo. 295. p,

78.
Clark V. Simmons, 4 Port. 14. p. 345,
Clark V. State, 8 Tex. App. 350. p

459.
Clark V. "Wardwell, 55 Me. 61. p. 55,
Clarke v. Canfield, 15 N. J. (Eq.) 119

p. 202.
Clarke v. Cummings, 5 Barb. 855,

pp.200, 215.
Clarke v. Diiteher, 9 Cow. 674. p. 6
Clarke v. Magruder, 2 H. & J. 77. p

68.
Clarke V. Maynard, 1 Madd. & Geld,

8(14. p. 115.
Clarkson v. Eichbaum, 2 Grant's Cas,

130. p. 303.
Clayton v. Wardell, 4 N. Y. 230. pp,

451, 5-7.
Clem V. K Co., 9 Ind. 489. p. 18.
Clements v. Hood, 67 Ala. 4G2. p.

3^4.
Clements v. Larndman, 2G Ga. 401.

p. 84.
Cliirord V. Parker, 2 Man. & Gr. 910.

p. 388.
Clifton r. U. S., 4 IIow.24G. pp. 122,

130, 132.
Clinton V. Kidwell, 82 111. 427. p.

279.

Clasmndouc r. Carroll, 18 C. C. 33.

p. 82.
Cloud V. Clinkenbard, 8 B. Mon. 397;

48 Am. Dec. 897, p. S04.
Clutr V. Mut Ben. L. Ins. Co., 13

Allen, 308. pp. 5, 305.
Clunnes v. Pezzey, 1 Camp. 8. p.

122.
Cobb V. Newcomh, 7 Iowa, 43. p. 54.
Cobleigh r. Young, 15 N. H. 493. p.

55.
Coblo V. State, 31 Ohio St. 100. p.

486.
Cochran v. Arnold, 58 Pa. SU 599.

p. 36.
Cockayne v. Sumner, 23 Pick. 117.

p. 5.
Cockins' Case, 2 Lewin, 235. p. 525.
Cofield V. McClelland, 18 Wall. 331.

pp. 33, 34.
Coil V. Willis, 18 Ohio, 28. p. 29.
Coit V. Starkweather, 8 Conn. 203.

p. 2G0.
Colburn v. Averill, 30 Me. 310; 50

Am. Dec. 630. p. 70,
Coles V. Bowne, 10 Paige, 526. p. 84.
Coles V. Kelsey, 2 Tex. 541 ; 47 Am.

Dec. 6G1. p. 2G1.
Coleman v. Lane, 26 Ga. 515. p.

321.
Coleman v. People, 55 N. Y". 81. p.

488.
Collins V. Loyal, 56 Ala. 403. p. 30.
Collins V. Tenney, 7 Johns. 279. pp.

31G, 318.
Colsell V. Budd, 1 Camp. 27. pp. 106,

823.
Colvin V. Worford, 20 Md. 353. p.

404.
Col well r. Prindle, 11 W. Va. 307.

pp. 322, 323.
Comfort V. People, 54 111. 404, p.

518.
Commercial Bk. v. Lum, 7 How.

(Miss.) 411. pp. 381.390.
Comm'rs v. Hanion, 1 N. & McC.

5-34. p. 381.
Comm'rs of Brown Co. v. JCoberts. 22

Kas, 702. p. So.

xlii

TABLE OF CASES CITED.

Comni'rs of Saline Co. v. Anderson,

20 Xas. 298; 27 Am. Eep. 171. p.

48.
Commonwenlth v. Bagloy, 7 Pick.

270. pp. 7, 458.
Com. V. Balkom, 3 Pick. 281. p. 34.
Com. V. Blood, 97 Mass. 5;:8. p. 33.
Com. V. Brown. 123 Mass. 410. p. 44.
Com. V. Burk, 11 Gray, 437. pp. 291,

296.
Com. V. Butler, 1 Allen (Mass.), 4.

p. 438.
Com. V. Carpenter, 100 Mass. 204.

p. 504.
Com. V. Clark, 14 Gray, 367. p. 551.
Com. V, Conner, 5 Leigh, 718. p. 465.
Com. V. Dana, 2 Mete. (Mass.) 329.

p. 445.
Com. V. Dunn, 58 Pa. St. 17. pp.

268,271,471,473.
Com. V. Engan, 103 Mass, 71. p. 205.
Com. V. Eddy, 7 Gray (Mass.) 583.

p. 459.
Com. V. Fowler, 10 Mass. 290. p. 47.
Com. V. Fuller, 2 Wheel. Cr. Cas. 223.

pp. 499, 589.
Com. V. Galavan, 9 Allen, 271. p. 545.
Com. V. Gannon, 97 Mass. 547. p. 296.
Com. V. Garth, 3 Cal. 6. p. 55.
Com. V. Goodwin, 14 Gray, 55. p.

531.
Com. V. Hardiman, 9 Gray (Mass.),

361. p. 447.
Com. V. Harlow, 110 Mass. 411. p.

532.
Com. V. Heath, 11 Gray, 303. p. 459.
Com. V. Horton, 2 Gray, 354. p. 492.
Com, V. Kelly, 10 Cush. 09. p. 564.
Com. V. Kimball, 7 Mete. 304. p.

463.
Com. V. Kimball, 24 Pick. (Mass.)

373. p. 415.
Com. V. Kinney, 120 Mass. 387. pp.

300, 549.
Com. V. Lahey, 14 Gray, 91. pp.

492, 504.
Com. V. Lewis, 1 Mete. 153. pp. 292,

290, 300.
Com. V. Low, 13 Pick. 409. p. 405.

Com. V. Mead, 10 Allen, 39S. pp.

279, 282.
Com. V. Merriam, 14 Pick. 518. p.

492.
Com. V. Millard, 1 Mass. 6. p. 518.
Com. V. Montgomery, 11 Mctc. 534.

p. 529.
Com. V. Murphy, 2 Gray, 511. p.

292.
Com. V. McCue, 16 Gray, 226. p. 49.
Com. V. Neal, 10 Mass. 152; 1 Lead.

Crim. Cas. 81. pp. 294, 279.
Com. V. Eogers, 7 Mete. 500. p. 459.
Com. V. Rowc, 14 Gray, 47. p. 564.
Com. V. Sheperd, 6 Binney, 283. p.

118.
Com. V. Strieker, 1 Browne, xlviii.

p. 118.
Com. V. Sturtevant, 117 Mass. 122.

p. 491.
Com. V. Thompson, 11 Allen, 25. p.

212.
Com. V. Thrasher, 11 Gray, 450. p.

492.
Com. V. Thurlow, 24 Pick. 374. pp.

463, 564.
Com. V. Walker, 13 Allen, 570. p.

549.
Com. V. Webster, 5 Cush. 316. pp.

120, 2G7, 442, 409, 496, 544.
Com. V. Welch, 97 Mass. 594. p. 291.
Com. V. Wentz, 11 Ashm. 269. pp.

116, 118.
Com. V. Williams, 2 Cush. 5S2. p.

513.
Com. V. Williams, 6 Gray, 1. p. 564.
Com. V. Wilson, 2 Cush. 590. p. 486.
Com. V. York, 9 Mete. 93. pp. 266,

4G9.
Comstock V. State, 14 Neb. 205. p.

552.
Conduit V. Soane, 24 L. T. (n. s.) 056.

p. 303.
Cone V. City of Hartford, 28 Conn.

363 (1859). p. 53.
Coiikwiight V. People, 35 111. 204.

pp. 479, 518.
Connecticut Trust Co. v. Melandy,

119 Mass. 450. p. 353.

TABLE OF CASES CITED.

xliii

Connolly v. McLean, G4 Pa. St. 118.

p. 848.
Connor v. State, 4 Terg. 137. pp.

20(3, 4C9.
Conner v. Trawick, 37 Ala. 289. p.

858.
Connelly r. McKean, 64 Pa. St, 113.

p. 846.
Connelly's Case, 1 Lowin C. C. 227.

p. 204.
Conolly V. Riley, 25 Md. 402. pp. 50.

370.
Continental Ins. Co. v. Delpeuch, 82

Ponn. St. 235. p. 102.
Conwell V. Watkins, 71 111. 488, pp.

54, 57.
Cook V. Helms, 5 Wis. 107. p. 77.
Cook V. Skelton, 20 111. 107. p. 38.
Cook, Re, Jr. Rep. 5 Eq. 240. p. 224.
Coi)kes V. Helller, 1 Ves. sr. 235. p.

144.
Cookendorfer v. Preston, 4 How. 317.

p. 18(3.
Coi'per V. Brockett, 4 Moore P. C.

414. p. 387.
Cooper V. Dedrick, 22 Barb. 516. p.

175.
Cooper V. Galbraith, 3 Wash. C. C.

64i5. p. 93.
Cooper V. Gibbons, 3 Camp, 363. pp.

130, 137.
Cooper V. Granberrj% 33 Mich. 117.

p. 54.
Cooper V. Moore, 44 Miss. 886. p. 47.
Cooper V. Poston, 1 Duv. 92. p. 256.
Cooper V. Reanej', 4 Minn. 528. p.

870.
Co!>e V. Cope, 1 ^I. & Rob. 275. pp.

112, 113, 115, 116, 117, 118.
Cope V. Humphreys, 14 S. & R, 21.

p. 327.
Cope V. Pearce, 7 Gill, 263. pp. 93,

433.
CoiH'land V. Clark, 2 Ala. 3S8. p.

353.
Copp V. Hanniker, 55 N. H. 179. p.

5(17.
C<>i^p V. Lnnib, 12 Me. 312. p. 55.
Corbus V. Tweed, 09 111. 205. p. 35.

Corbishloy'B Trusts, 14 Ch. Div. 81C.

p. 201.
Curdrey v. Cordrey, 1 Houst. (Del.)

269. p. 280.
Corning v. Gd. Rapids, 46 Mich. 150.

p. 36.
Corwin r. Shoup, 76 111. 246. p. 20.
Cory V. Silcox, 6 Ind. 39. p. ."5.
Costigan v. Gould, 5 Denio, 290. p.

89.
Costigan v. Jlohawk, etc., R. Co., 43

Am. Dec. 758; 2 Denio, 00. p.

140.
Coulson V. Watson, 9 Pet. 08. p. 394.
County of Hancock v. Eastern Rivur

Co., 20 :\Ie. 72. p. 54.
County of Mills t). Hamuker, 11 Iowa,

206. pp. 29, 36.
Covert V. Gniy, 34 How. Pr. 450. pp.

176, 188, 579.
Cowio V. Fisher, 45 Mich. 629. p.

803.
Cowperw. Cowper, 2 P. Wms. 749. pp.

140, 152.
Cox V. Morrow, 14 Ark. 603. p. 358.
Cox V. Palmer, 1 McCrary, 331. p.

3'JO.
Coxe V. Deringer, 78 Pa. St. 271. p.

419.
Coxe V. Deringer, 82 Penn. St. 258.

18;3.
Coxe V. Field, 13 N. J. (L.) 215. p.

36.
Coye V. Leach, 8 Mete. 371. pp. 241,

246. ..
Coylo V. Gozzler, 2 Cranch. C. Ct.

625. p. 186.
Ct>zzens V. Gillispie, 4 Mo. 82. p.

256.
Crab tree v. Clark, 20 Me. 337. pp.

381, 393.
Crafts r. Clark, 38 Iowa, 237. p. 370.
Craig V. Adair, 22 Ga. 373. p. 54.
Craig V. Craig, 1 Bailey (Eq.) (S. C),

102. p. 200.
Crake v. Crake, 18 Ind. 150. p. 358.
Crane v. Hardy, 1 Mich. 56. p. S70.
Crawford v. Elliott, 1 Houst. (Del.)

465. p. 200.

xliv

TABLE OF CASES CITED.

I

Creed, Ee, 1 Drewry, 235. p. 215.
Cress V. Btiird, 3 Ohio St. 277. p.

303.
Cressy v. Tatom, 9 Oresr- 541. p. 358.
Cribbs v. Adams, 18 Gray, 597. pp.

371, 372.
Crisp V. Anderson, 1 Stark. 35. pp.

82, 122.
Crist V. State, 21 Ala. 149. p. 39.
Croft V. White, 36 Miss. 455. p. 390.
Cromelien v. Brink, 29 Pa. St. 522.

p.- 37.
Crompton v. Pratt, 105 Mass. 255. p.

350.
Cross V. Bell, 34 N. H. 82. p. 123.
Cross V. Brown, 41 N. H. 289. p. 93.
Cross V. Cross, 3 Paige CIi. 139; 23

Am. Dcp. 778. pp. 113, 110.
Crouch V. Evelctb, 15 Mass. 305. p.

197.
Crouch V. Hall, 15 111. 2G3. p. 359.
Grouse v. Holman, 19 Ind. 30. p.

179.
Crow V. Marshall, 15 Mo. 499. p.

404.
Crowninsbield v. Crowninsbield, 2

Gray, 524. p. 280.
Croxton V. May, L. K. 9 Cb. Div. 388.

p. 303.
Crozier v. Hodge, 3 La. 858. p. 370.
Culbertson v. Milbollin, 22 Ind. 362.

p. 54.
Cumberland Bk. v. Hall, 6 K J. L.

215. p. 381.
Cumberledge v. Cole, 44 Iowa, 181.

p. 420.
Cummings v. Stone, 13 Mich. 70. p.

93.
Cunningham v. State, 56 Miss. 269.

pp. 457, 459, 589.
Curlewis v. Corfield, 1 Q. B. 814. p.

133.
Currier v. Gale, 9 Allen, 522. p. 163.
Curtis V. Herrick, 14 Cal. 117 (1859).

p. 53.
Curtis V. Leavitt, 15 N. Y. 1. p.

270.
Curtis V. State, 6 Cold. 11. p. 518.
Curtiss V. Martin, 20 111. 557. p. 77.

Cutler V. State, 30 N. J. (L.) 125. pp.

7, 453.
Cutler V. Wright, 22 N. Y. 472. p.

378.
Cuttle u. Brockway, 24 Pa. St. 145.

p. 55.

D.

D. T. V. D. L. B., 1 P. & D., 127.

p. 72.
Daby v. Erickson, 45 N. Y. 788. pp.

320, 322.
Dallon V. Bethlehem, 20 N. H. 505.

p. 320.
Dalton V. Lusk, 16 Mo. 111. p. 358.
Dalston v. Coatsworth, 1 P. Wms.

731. pp. 141, 146.
Dalton V. Coatsworth p. 540.
Dana v. Kemble, 19 Pick. 112. p.

67.
Dauby u. Danby, 5 Jur. [n. s.) 54. p.

223.
Daniels v. Barney, 22 Ind. 207. p.

7.
Daniels v. Hamilton, 52 Ala. 105.

pp. 172, 173.
Danley v. Rector, 10 Ark. 211; 50

Am. Dec. 242. p. 570,
Darrant v. Friend, 5 DeG. & Sm, 345.

p. 241.
Davenport Plow Co. v. Mervis, 10

Neb. 317. p. 36.
Davidson v. Kimpton, L. E. 18 Ch.

Div. 213. p. 303.
Davies v. Davies, 9 C. «fc P. 37. p.

75.
Davis V. Black, 1 Q. B 911. p. 35.
Davis Bowling, 19 Mo. 651. p. 358.
Davis V. Briggs, 7 Otto, 628. p. 200.
Davis V. Bush, 8 Jur. 1114. p. 303.
Davis V. Cariisle, 6 Ala. 707. p. 390.
Davis V. Dodd, 4 Taunt. 602. p. 354.
Davis V. Fish, 1 G. Greene (Iowa),

406; 48 Am. Dec. 387. p. 68.
Davis V. Hudson, 29 Minn. 28. p.27.
Davis V. Jenny, 1 Mete. 223, p.

393.
Davis V. Johnson, 8 Munf. 81. p. 55.
Davis V. Loftin, 6 Tex. 490. p. ool.

TABLE OF CASES CITED.

xlv

Davis V. People, 1 Park. C. C. 447.

p. 510.
Davi3 V. Rogers, 14 Ind. 424. p. 370.
Davis V. Stale, 17 Ala. 354. p. 34.
Davis V. State, 6 Tex. (App.) 107.

p. 3G.
Davis V. State, 6 Baxt. 429. p. 55.
Day V. Lamb, 7 Vt. 426, p. 90.
Dean v. Bittner, 77 Mo. 101. p. 202.
Dean v. Com., 4 Grntt. 541. p. 538.
Dean v. State, 37 Ark. 59. p. 34.
De Bardelabau v. State, 50 Ala. 180.

p. 39.
Docker v. Livingston, 15 Johns. 479.

p. 351.
Decker v. Matthews, 12 N. J. 313.

p. 146.
Do Freest v. Bloomingdale, 5 Denio

304. p. 353.
Deininger v. McConnell, 41 El. 227.

p. 84.
Dt'jarnette v. Com., 75 Ya. 8G7. p.

459.
Delabigarre v. Second Municipality,

3 La. Ann. 250. p. 419.
Delaney v, Robinson, 2 Whart. 503.

p. 315.
Delphi School Dist. v. Murray, 53

Cal. 29. p. 47.
Delamere v. Queen, L. R. 2 H. L.

419. p. 35.
Delano V. Goodwin, 41 N. H. 205.

p. lt>2.
Delassus v. U. S., 9 Pet. 118. p. 55.
Dempster v. Parnell, 4 Scott N. R.

30. p. 28.
Don V. Den, 6 Cal. 81 (1856). p. 53.
Den V. Gaston, 25 N. J. (L.) 615. p.

419.
Den V. Hill, McAll. 480. p. 55.
Dennison v. Page, 29 Pa. St. 420. pp.

108, 118.
Deimison v. Story, 1 Oregon, 272. p.

55.
Denniston v. McKeen, 2 ^IcLean,

252. p. 315.
Denny v. Dana, 2 Cush. 160. p.

263.
Desha i;. Smith, 20 Ala. 747. p. 68.

Desnoycr v. McDonald, 4 iliiin. 515.

p. 370.
Desvcrges v. Desverges, 31 Ga. 753

p. 419.
Deupreo v. Deupree, 45 Ga. 414. p.

35.
Devino v. "Wilson, 10 Moore, P. C.

502. p. 404.
Dexler v. Arnold, 3 Sumn. 152. p.

316.
Diamond r. Tobias, 12 Pa. St. 312.

p. 324.
Diokcrson v. Burke, 25 Ga. 225. p.

77.
Didlako v. Robb, 1 Woods, 682. p.

322,
Diehl V. Emig, 65 Penn. St. 327. pp.

82,110.
Dillman v. Cox, 23 Ind. 440. p. 304.
Dinkinsv. Samuels, 10 Rich. (L.) 70.

p. 108.
Dobson V. Campbell, 1 Sumn. 319.

p. 35.
Dodd V. Wake, 5 DeG. & Sm. 226.

p. 303.
Dodge V. Coffin, 15 Kas. 280. p. 36.
Dodge V. Haskell, 69 Me. 429. p.

396.
Doe V. Andrew, 15 Q. B. 751. p. 219.
Doe V. Campbell, 10 Johns. 475.

p. 404.
Doe V. Deaken, 4 B. & Aid. 435. p.

215.
Doe V. Flanagan, 1 Ga. 558. p. 200.
Doe V. Ireland, 11 East, 280. p. 427.
Doe V. Jesson, 6 East, 80. p. 201.
Doe V. Nepean, 6 B. & Ad. 36. pp.

201, 235, 242.
Doe V. Palmer, 16 Q. B. 747. p.

387. •

Doll V. Anderson, 27 Cal. 248. p. 35.
Dollarhide v. Muscatine Co., 1 G.

Greene, 158. p. 54.
Dollfus V. Frosth, 1 Denio, 367. p.

372.
Dolph V. Barney, 5 Oregon, 591. p.

55.
Donahue v. Coleman, 49 Conn. 464.

p. 174.

xlvi

TABLE OF CASKS CITED.

Doiipgan V. T^'ood, 49 Ala. 242. y

370.
Donnell v. Thompson, 13 Ala. 440

p. 420.
Donnelly v. State, 26 N. J. (L.) 613

pp. 545, 549.
Donohoe v. People, 6 Park. 120. p

551.
Doolittle V. Holton, 26 Vt. 588. p

569.
Doran v. Mullen, 78 111. 842. p. 18
Dorchester, etc., Bk. v. N. England

Bk., 1 Cush, 117. pp. 17, 73.
Doty V. James, 28 Mo. 319. p. 347
Doty V. State, 6 Blackf. 529. p. 40
Douglass V. Dakin, 46 Cal. 49. pp

248, 252.
Douglass V. Mitchell, 35 Pa. St. 440.

pp. 5G9, 572, 574.
Douglass V. Ovens, 5 Kich. (L.) 534,

p. 55.
Dove V. State, 3 Heisk. 348. p. 459
Dove V. State, 37 Ark. 262, p. 279,
Dowley v. Winfield, 14 Sim. 277. p

239.
Dowling V. Blackman, 70 Ala. 303

p. 351.
Downing v. Plate, 90 111. 268. p. 142
Downs V. Sooy, 28 K J. (Eq.) 55. p

308.
Doyle V. Doyle, 56 N. H. 667. p

568.
Drake v. Duvenick, 45 Cal. 455. p

40.
Drake v. Mooney, 31 Vt. 617. p. 55
Drayne's Case, 5 Leg. Obs. 123. pp

509, 516, 529.
Drennau v. Douglass, 102 111. 345. p

108.
Druse v. Wheeler, 22 Mich. 439. pp

47, 49,
Drysdale's Appeal, 14 Pa. St. 531

p. 320.
Dubois V. Mason, 127 Mass. 37. p

358.
Dudley v. Cadwell, 19 Conn. 219. p

84.
Dudley V. Chilton Co., 66 Ala. 594

(1880). p. 53.

Duffy, Pve, Ir. Kcp. 5 Eq. 506. p

SS7.
Duke V. Thompson, 16 Ohio, 35. p,

403.

Duke of Cumberland v. Graves, 197.
Dukes V. llowlcy, 24 111. 210. p. 35
Duncan v. Drury, 9 Pa St. 332; 49

Am. Dec. 565. p. 304.
Dunham v. Miiiard, Page, 443. 816
Dunlap V. Sims, 2 La. Ann. 530. p,

54.
Dunlap V. Ball, 2 Cranch, 184. p

342.
Dunlap V. Dougherty, 20 111. 397. p

54.
Dunlap V. Munroe, 1 Cranch C. C.

537. p. 55.
Dunn V. Adams, 1 Ala. 527 ; 35 Am

Dec. 42. p. 359.
Dunn V. Snowden, 32 L. J. (Ch.) 104

p. 197.
Duim V. State, 2 Ark. 227. pp. 488,

605.
Dunn's Case, 1 Moody, 146. p. 487,
Dupeyre v. Western Ins. Co., 2 Rub.

(La.) 457; 38 Am. Dec. 4G5. p.

102.
Dupuis V. Thompson, 16 Fla. 70. p.

54.
Durgin v. Danville, 47 Vt. 92. p.

124.
Durkins v. Morse, 17 Ga. 62. p. 57.
Du Val V. Marshall, 30 Ark. 230. p.

3G9.
Dyer v. Flint, 21 111. 80. p. 54.
Dyerle v. Stair, 28 Gratt. 800. p. 70.
Dyson V. State, 26 Miss. 3G2. pp.

'36, 54.

E.

Eagle's Case, 3 Abb. Pr. 218. pp.

201, 222, 224, 230, 232.
Eames v. Eames, 41 N. H. 177. p.

175.
Earbee v. "Wolfe, 9 Port. 366. p. 77.
East India Co. v. Evans, 1 Vern. 308.
East India Co. v. Sandys, 1 Vern. 127-

p. 145.

TABLi: OF CASES CITED.

xlvii

Eai=t India Co. v. Tritton, 3 B. & C.

280. p. 6.
Eastman v. Teoplo, 93 111. 112. p. 3'>.
Eaton V. Wliito, 18 Wis. 518. p. 47,
Eaton V. Woydt, 2G Wis. 833. p. 172.
E!)y V. Eby, 5 Pa. St. 435. p. 333.
Eckor V. McAllister, 45 Md. 290. pp.

2G2, 407.
Edson V. Hayden, 18 Wis. G27. p. 55.
Edwards, In re, 68 Iowa, 431. p. 95.
Edwards v. Cunjpbell, 23 Barb. 423.

p. 317.
Edwards r. 'James, 7 Tex. (App.) 372.

p. 65.
Edwards v. State, 49 Ala. 834. p. 39.
Edwards v. Tuck, 23 Beav. 271. p.

803.
Egery v. Buchanan, 5 Cal. 53 (1855).

p. 53.
"Kg^ V. Barnett, 3 Esp. Cas. 196. p.

815.
EUicott V. Martin, 6 Md.509. p. 77.
Ellis V. Carr, 1 Bush, 527. p. 64.
Ellis V. Pay, 4 Conn. 95. p. 481.
Ellis V. Drake, 8 Allen, 161. p. 564.
Ellis V. Ellis, 58 Iowa, 720. p. 5G9.
Ellis V. Maxon, 19 Mich. 186. p. 873,
Ellsworth V. Moore, 6 Iowa, 486. p.

256.
Eloi V. Mader, 1 Rob. 531 ; 38 Am.

Due. 192. p. 118.
Ely V. Ely, 6 Gray, 439. p. 381.
Ely V. James, 123 Mass. 36, p. 353.
Emerson v. White, 29 N. H. 482. p.

197.
Emory v. Smith, 54 Ga. 273. p. 120.
Endres y. Lloyd, 56 Ga. 547. p, 85.
Entriken v. Brown, 30 Pa. St, 864. p.

420,
Epping V. Tunstall, 57 Ga. 207. p, 35,
Erskine v. Davis, 25 111. 251. pp.

190, 580.
Erwin v. Lowry, 7 How, 181. p. 54,
Ettiiiger v. Com., 98 Pa. St, 3i5. p.

615,
Eureka Case, The, 4 Sawy, 302. p.

56,
Eureka Ins. Co. v. Robinson, 56 Pa,
St. 256. pp. 184, 185.

Eustice V. Gaskins, 1 Wash, (Va.) 183.

p, S41.
Evans v. Ashby, 22 Ind, 15. p, 5''.
Evans v. Bd. of Trustees, 15 Ind. 319.

p. 420,
Evans V. Covington, 70 Ala. 440. p,

858.
Evans v. Evans, 41 Cal, 103. pp.

202, 407.
Evans v. Huff, 5 N. J, (Eq.) 300. p.

816,
Ewart, Ro, 1 Sw. & Tr. 258, p, 242,
Ewing V. Suvery, 8 Bibb, 205. p. 200.

F.

Facey v. Fuller, 13 Mich. 527, p,

8G.
Fackler v. Chapman, 20 Mo. 249. p.

479.
Fairlee v. Fairlee, 21 N. J, (L.) 284.

p. 419.
Fales V. Wadsworth, 23 Me. 553. p.

504,
Falkner v. Christian, 51 Ala, 495.

p, 84.
Farlce v. Farlee, 21 ^\ J. L. 284.

p. 394.
Farmer's Bank v. Leonard, 4 Harr.

(Del.) 337. p. 336.
Farmer's, etc., Bk. v. Detroit, etc., R.

Co. 17 Wis, 372, p, o;^.
Farmer's, etc., Bk. v. 2s"oxon, 45 N.

Y, 762. p. 77.
Farmer's, etc., Bk. v. Sprague, 52 N.

Y. 605. pp. 18, 74,
Farr v. Payne, 40 Vt. 615. p. 165.
Farr v. Sims, Rich. Eq. Cases, 122;

24 Am. Dec. 396 (1832). p. 53.
Farrar v. Beswick, 1 N. «& R, 527.

p. 67.
Farrar v. State, 2 Ohio, 54. p. 486.
Farrar v. State, 5 Tex. (App.) 489.

p. 55.
Farrar V. Merrill, 1 Me, 17. p, 403.
Farrow v. Edmundson, 4 B. Mou.

665; 41 Am, Dec. 250, p, 404,
Fanning v. State, 14 Mu, Z'i^. p.
638.

xlviii

TABLE OF CASES CITED.

Fnnlknor v. Johnson, 11 M, *t W.

581. p. 59.
Fay V. Eichmond, 43 Vt. 25. p. 47.
Tertster r. Woodfill, 23 Ind. 493. p.

54.
Federhen v. Smith, 3 Allen, 119. p.

90.
Felker v. Emerson, 16 Vt. 653. p.

280.
Fenton v. Keed, 13 Johns. 51. pp.

93, 435.
Fenwick v. Eeed, 1 B. & Aid. 232.

p. 411.
Ferrer's Case, 19 How. St. Tr. 904.

p. 509.
Ferris v. Kilmer, 47 Bach. 411. p.

68.
Ficklin v. Carrington, 31 Gratt. 219.

p. 305.
Fife V. Com., 29 Pa. St. 429. p. 3G.
Fields. Brown, 24 Gratt. 74. p. 403.
Field V. Gooding, 106 Mass. 310. p.

564.
Field V. Proprietors, 1 Cush. 11. p.

50.
Field V. Walker, 17 Ala. 80. p. 803.
Filer v. Peebles, 8 N. H. 226. p. 183.
Finch V. Alston, 2 H. P. (Pa.) 85. p.

478.
First Nat. Bk, v. Green, 43 N. Y. 298.

p. 79.
First Nat. Bk. v. McMangle, 69 Pa.

St. 156. p. 344.
First Nat. Bk. v. St. Joseph, 46 Mich.

527. p. 54.
Fish V. Skeet, 21 Barb. 833. p. 420.
Fisher v. Chicago, etc., H. Co., 104

111. 323. p. 35.
Fisher v. Maj-or of New York, 6 Hun,

64. p. 326.
Fisher v. Phillips, 4 Baxt. 243. p."

343.
Fisher's Case, 23 111. 293. p. 459.
Fitch V. Jones, 5 El. & B. 238. p.

77.
Fitch V. Peckham, 16 Vt. 150. p.

75.
Fitzgerald v. Drissler, 7 C. B. (n. s.)

375. p. 82.

Fitzluigh V. Croghan, 2 J. J. Marsh.

429; 19 Am. Dec. 139. p. 403.
Fitzwilliam v. Troy, 6 N. H. 166. p.

802.
Fladong v. "Winter, 19 Ves. 197. p.

336.
Flanagan v. State, 46 Ala. 703. p.

493.
Flanagan v. State, 25 Ark. 92. p.

542.'
Flanders v. Davis, 19 N. H. 139. p.

280.
Flannery v. Anderson, 4 Nev. 438. p.

30.
Fleming v. Fleming, 4 Bing. 266. p.

106.
Fleming v. People, 27 N. Y. 329. p.

106,
Flettesham v. Julian, Year Book, 7

Hen. IV. 9. p. 109.
Florentine v. Barton, 2 Wall. 210. p.

34.
Flournoy v. Warden, 17 Mo. 435. p.

248.
Floyd V. Calvert, 53 Miss. 46. pp.

450, 451, 586.
Flynn v. Coffee, 12 Allen, 133. p.

215.
Flynn v. Murphy, 2 E. D. Smith,

278. pp. 18, 74.
Folsom V. Koot, 1 Cal. 374. p. 35.
Foot V. Stevens, 17 Wend. 483. pp.

30, 34.
Foote V. Lawrence, 1 Stew. (Ala.)

483. p. 38.
Fontaine v. Gunther, 31 Ala. 264.

p. 396.
Forbes v. Scanwell, 13 Cal. 278. p.

372.
Ford V. Simmons, 13 La. Ann, 397,

20.
Forman 1;. Crutcher, 2 A. K. Marsh.

70. p. 419.
Forsaith v. Clark, 21 N. H. 409. pp.

56, 200.
Forsyth v. Baxter, 3 Til. 9. p. 360.
Fourth Parish v. Springfield, 18 Pick.

319. p. 403.
Foster v. Steele, 3 Bing. 892. p. 557.

TABLE OF CASES CITED.

xlix

Foulk V. Brown, 2 "Watts, 216. pp,

310, 319, 40 5.
Foulks V. Ehea, 7 Bush, 508. p

200.
Fox V. Hoyt, 12 Conn. 401 ; 31 Am

Dec. 7C.3. p. 29.
Fox V. Thompson, 7 Casey, 174. p

407.
Forcraa's Case, 1 Roll. Abr. p. 110
Foxley's Case, 5 Coke, 109b; 43

Eliz. p. .037.
Fniiicis V. Bilker, p. 568.
Frail tz V. Ireland, 66 Barb. 386. p.

404.
Fraser v. Frasor, Jac. 586. p. 303.
Frcel V. State, 21 Ark. 212. pp.279, 296.
Freestone v. Butcher, 9 C & P. 647.

p. 280.
Freeholders v. State, 24 N . J. (L.)

718. p. 57.
Freeman v. Thayer, 33 Me. 76. p

82.
French v. Frazier, 7 J. J. Marsh. 431

p. 239.
French v. Price, 24 Pick. 13. pp. 353

35.J.
Frick V. Barbour, 64 Pa. St. 120. p

134.
Fritz V. Brandon, 78 Pa. St. 342. p

403.
Frosh V. Holmes, 8 Tex. 29. pp. 36

40.
Frost V. Brown, 2 Bay, 133. pp. 403

556.
Fuhrman v. London, 13 R. & E. 386

15 Am. Dec. 608. p. 819.
Fuller V. Bates, 6 111. (App.) 442. p,

85.
Fuller V. Hutchins, 10 Cal. 523. p

79.
Fuller V. Saxton, 20 N. J. (L.) 61. p

419.
Fuller V. Smith, 5 Jones Eq. 192. p

844.
Fuller V. State, 48 Ala. 273. p

518.
Fuhvciler v. Baugher, 15 S. & P.. 45

p. 192.
Fyfe V. Fyfe, 106 111. 646. p. 258.
d

G.

Gaines v. Herman, 24 How. 553. p.

107.
Gaines v. New Orleans, 6 "Wall. 690.

p. 107.
Gaither v. Myrick, 9 Md. 118. p. 439.
Gallagher v. Vaught, 8 Hun, 87. p.

75.
Galpin v. Page, 18 Wall. 304. pp. 28,

33, 46, 576.
Gantt's Admr. v. Phillips, 25 Ala.

2781. pp. 422, 424, 425.
Garden v. Garden, 2 Houst. (Del.)

574. p. 233.
Garden City Ins. Co. v. Stayart, 79

111. 259. p. 54.
Gardner v. Lewis, 7 Gall. 377. pp.

262, 370, 467.
Gardners. People, 6 Park. C. C. 205

p. 543.
Gardner v. Webber, 17 Pick. 407. p

90.
Garland v. Lane. 46 N. H. 245. p

77.
Garloch v. Geortner, 7 "Wend. 108. p

347.
Garner v. Green, 8 Ala. 96. p. 103.
Garnier v. Renner, 51 Ind. 374. p

324.
Garrett v. Dilsbury E. Co., 78 Pa. St

467. p. 36.
Garrett v. Jackson, 8 Harris, 335. p,

407.
Garrison v. McGlockley, 38 Cal. 78

p. 35.
Garrison v. Myers, 12 "W. Y&. 330,

p. 36.
Gartside v. Ratcliffe, Chac. Cas. 292,

p. 144.
Garwood v. Hasings, 38 Cal. 229. p

212.
Gassett v. Godfrey, 26 N. H. 415. p

93.
Gast V. Drakely, 2 Gill, 330. p. 5.
Gathings v. "Williams, 1 Ired. (L.)

4S7 ; 44 Am. Dec. 49. p. 404.
Gaul r. Grout, 1 Cow. 113. p. 50.
Gaugwere, Re, 14 Pa. SU 417.' p. 179.

1

TABLE OF CASES CITED.

Gny r. Biclvroll. 7 Mich. 519. p. 93.
Gay r. Soulbworth, 113 Mass. 333.

p. 54.
Geading v. "Walter, 29 Mo. 426. p.

304.
Gee V. Hicks, Rich. (S. C.) Eq. Cas.

pp. 99, 440.
Gelston v. Hoyt, 1 Johns. Ch, 543.

p. 176.
Gening v. State, 1 McCord, 573. p.

465.
Gentile y. Foley, 3 La. Ann. 146. p.

36.
Georgia R. Co. v. Monroe, 49 Ga. 373.

p. 103.
Georgia R. Co. v. Willis, 28 Ga. 317.

p. 103.
Germain v. Brooklyn L. Ins. Co., 26

Hun, 604. p. 192.
Gerry v. Post, 13 How. Pr. 118. p.

224.
Gibbes v. Vincent, 11 Pick. (L.) 323.

p. 232.
Gibbs V. Nash, 4 Barb. 449. p. 84.
Gibbs V. Pike, 9 M. & W. 351. p. 35.
Gibson v. Doeg, 2 H. & N. 615. pp.

81, 276.
Gibson v. Fletcher, 1 Ch. Cas. 59. p.

316.
Gibson v. State, 38 Miss. 313. p. 444.
Gilbert v. Ross, 7 M. & W. 121. p.

135.
Gilbraith v. Littiech, 73 111. 209. p.

54.
Giles V. Barremore, 5 Johns. Ch. 545.

pp. 309, 318.
Gill V. Munley, 16 Ir. L. T. 57. p. 201.
Gilleland v. Martin, 3 McLean, 490.

p. 216.
Gillett V. Gillett, 9 Wis. 194. p. 55.
Gillett V. Sweat, 6 111. 475. p. 390".
Gilman v. Eaton, 3 Brod. & B. 75.

p. 380.
Gilt V. Watson, 18 Mo. 274. p. 248.
Given v. Albert, 5 W. & S. 333. p.

92.
Given v. Charron, 1 Md. 502. pp.

17, 73.
Givens v. Tidmore, 8 Ala. 745. p. 248.

Gladthorpo v. Hardman, 13 M. & W.

377. p. "5.
Glancy v. Elliott, 14 111. 456. pp. 35,

54.
Glass V. Gilbert, 58 Pa. St. 266. p.

403.
Glaze V. Blake, 56 Ala. 379. p. 120.
Godfrey v. Disbrow, Walk. (Mich.)

2G0. p. 84.
Godfrey v. Schmidt, 1 Cheves (S. C.)

57. p. 200.
Goener v. WoU, 26 Minn. 154. p. 54.
Golden v. State, 25 Ga. 527. p. 539.
Goldhawk v. Duane, 2 Wash. C. C.

323. p. 323.
Goldie V. McDonald, 79 111. 605. p.

173.
Goldner v. Bressler, 105 111. 420. p.

47.
Gombault v. Public Admr., 4 Bradf.

226. p. 179.
Gooch V. Bryant, 13 Me. 365. p. 381.
Goodell V. Hibbard, 32 Mich. 55. p.

249.
Goodman v. Griffin, 3 Stew. (Ala.)

IGO. p. 358.
Goodman v. Sayres, 2 Jac. & W. 263.

p. 6.
Goodman v. Simonds, 20 How. 343.

p. 77.
Goodman v. Winter, 64 Ala. 410. p.

419.
Goodright v. Saul, 4 Term Rep. 358.

p. 110.
Goodtitle v. Baldwin, 11 East, 488.

pp. 404, 427.
Goodwin v. Garr, 8 Cal. 615. p. 420.
Goodwyn v. Baldwin, 69 Ala. 127,

pp. 7, 308.
Gordon v. Norris, 29 K H. 1 98. p. 55.
Gordon v. People, 33 N. Y. 508. p.

551.
Gordon v. Ward, 16 Mich. 363. p. 370.
Gose V. State, 0 Tex. App. 121. p.

537.
Goshen v. Richmond, 4 Allen, 458.

p. 564.
Gossct V. Howard, 10 Q. B. 441. p. 36.
Gottfried's Case. p. 499

TABLE OF CASES CITED.

u

Goulil v. Norfolk Lead Co., 9 Cush.

8;JS. p. 103.
Goulding V. Chirk, 34 N. H. 148.

pp. 27, 31.
Governor v. Campbell, 17 Ala. 566.

p. 304.
Governor v. Ridgway, 12 111. 14. p.

67.
Giiibill V. Barr, 5 Pa. St. 441. p. 179.
Giufton Bank v. Doo, 19 Vt. 4G7. p.

800.
Graham r. Com., IG B. Mon. (Kj.)

687. p. 459.
Graham v. O'Fallon, 4 Mo. 007. p.

381.
Graham w.Whitely, 26 N. J. (L.) 262.

p. 31.
Grant v. Burgwyn, 84 N. C. 550. p.

340.
Grant v. Lexington F. Ins. Co., 5 Ind.

28. pp. 17, 73.
Grantmake v. Sampson, 2 Atk. 154.

p. 327.
Graves v. Colwell, 90 111. 615. pp.

259, 576.
Graves v. Moore, 7 T. B. Mon. 341.
p. 845.
. Graves v. State, 12 Wis. 593. p. 168.
Gray v. Cruise, 3G Ala, 559. p. 37.
Gray v. Luich, 23 Conn. 613! p.

103.
Gray v. Fray, 2 Lans. 173. p. 349.
Gray v. Haig, 20 Beav. 219. p. 145.
Gray v. Larrimore, 4 Sawy. 638. p.

83.
Grayson v. Weddle, 63 Mo. 623. p.

54.
Great West. R. Co. v. Bacon, 30 111.

347. p. 20 .
Greaves v. Legg, 11 Ex. 612: 2 11. &

N. 210. pp.17, 73
Green t;. Brown 2 Strange, 1199. p.

228.
Green v. Rugley, 23 Tex. 539. p. 370.
Green v. Russell, 132 Mass. 538. p.

353.
Green v. State, 66 Ala. 40. p. 34.
Greenfield v. Camden, 74 Me. 50. p.
172.

Greensborough v. Underbill, 12 Vt

604. pp. 448, 683.
Greenshields v. Crawford, 9 M. & W.

314. p. 253.
Green wado v. Green wade, 3 Dana,

497. 300.
Greenwood v. Lowe, 7 La. Ann. 197.

pp.93, 438.
Gregg V. Bethoa, 6 Port. 9. p. 321.
Gregory v. Brooks, 37 Conn. 365. p.

61.
Grellier v. Neale, 1 Peake, 199. p.

83.
Greville v. Tyler, 7 Moore, P. C. 320.

p. 387.
Grewell v. Henderson, 7 Cal. 290. p.

35.
Grey v. Grey, 47 N. Y. 552, pp. 305,

355.
Grey v. McDowell, 6 Bush, 482. p.
214.
Griffin v. Custer, 5 Ired. (Eq.) 413.

p. 359.
Griffin v. Mason, 3 Camp. 7. p. 83.
Grimes v. Bastrop, 26 Tux. 310. p.

403.
Grimes v. Fall, 15 Cal. 63. p. 41.
Grimes v. Kimball, 3 Allen, 513. pp.

124, 100.
Grinnell v. Warner, 21 Iowa, 11.

p. 353.
Grinstead v. Foote, 26 Miss. 476. p.

40.
Groves v. Groves, 12 W. R. 45. p.

303.
Groves v. Steel, 3 La. Ann. 280. p.

322.
Guard v. Bradley, 7 Ired. 600. p. 304.
Guardian L. Ins. Co. v. Hogan, 80 III.

35. p. 192.
Gueligr. State, 66 Ind. 94. p. 459.
Guice V. State, 60 Miss. 714. p. 36.
Gulick V. Loder, 13 N. J. (L.) 72.

p. 555.
Gurney v. Gumey, 32 L. J. (Ch.) 456.

p. 117.
Gutzweiler v. Lackman, 39 Mo. 91.

p. 93.
Guy V. Washburn, 23 Cal. Ill p. 53.

lii

TABLS OF CASES CITED.

Gwinr, Loe, 1 Md. Ch. 445. p. 77.
Gwyn V. Porter, 5 Heisk. 264. p. 342.

H.

Habersham v. Hopkins, 4 Strobh. (S.

C.) 239. p. 93.
Haden v. Ive)', 51 Ala. 381. p. 358.
Eadfield's Case, 29 How. St. Tr. 109.

p. 179.
Hagar v. Supervisors, 47 Cal. 222

(1874). p. 53.
Hagar v. Thomson, 1 Black. 80. p. 93.
Hahn v. Kelly, 34 Cal. 400. p. 27.
Haines v. Pearce, 41 Md. 221. p. 355.
Haire v. Wilson, 9 B. «& C. 643. p.

262.
Haldane v. Harvey, 4 Burr. 2486. p.

121.
Hale V. Pack, 10 W. Va. 145. p. 342.
Hale V. "Warner, 36 Ark. 221. p. 34.
Haley v. Lacey, 1 Sawy. 498. p. 22.
Hall, Re, 1 Wall. jr. 85. pp. 193,

200, 223.
Hall, Re, 12 Ch. L. N. 68. p. 241.
Hall V. Bainbridge, 12 Q. B. 699. p.

83.
Hall V. Com., Hardin (Ky.) 480. p.

192.
Hall V. Holden, 116 Mass. 172. p. 70.
Hall V. Howell, 10 Conn. 514. p. 80.
Hall V. Kellogg, 16 Mich. 135. pp.

59, 00.
Hall V. Pillow, 31 Ark. 32. p. 358.
Hall V. State, 8 Ind. 439. p. 518.
Hall V. Warren, 9 Vesey, 605. p.

179.
Hallock V. Bush, 2 Root, 26. p. 303.
Halyburton v. Kershaw, 3 Dessau.

105. p. 144.
Ham V. Barret, 28 Mo. 388. p. 5G0.
Hamby v. State, 36 Tex. 623. pp.

271, 473, 474.
Hamilton v. People, 29 Mich. 193.

p. 576.
Hamlin v. Dungman, 5 Lans. 61. p.

47.
Hamlin v. Hamlin, 3 Jones Eq. 191.

p. 336.

ITammersmith, etc., R. Co. v. Brand,

L. 11. 4 II. L. 224. p. 134.
Hammond v. Inloes, 4 Md. 140. pp.

193, 197.
Hampden v. Hampden, 1 Brown P.

C. 250. p. 145.
Hamshaw v. Kline, 57 Pa. St. 397. p.

248.
Hancock v. Am. L. Ins. Co., 02 Mo.

26. pp. 200, 201.
Hand v. Ballou, 2 Kernan, 641. p.

563.
Hanford v. Fitch, 41 Conn. 486. p.

404.
Hanks, Ex parte, 1 Cheves (S. C.) 203.

p. 55.
Hansen v. Bergquist, 9 Neb. 269. p.

36.
Hanson v. Chitovitch, 13 Nev. 395.

p. 103.
Hanson v. Eustice, 2 How. 653. p.

137.
Hanson v. McCue, 42 Cal. 303. p. 405.
Harbaugh v. City of Monmouth, 74

HI. 367. p. 20.
Hardin v. Crate, 78 111. 533. p. 8 i.
Hardin v. Hays, 9 Pa. St. 151. p. 179.
Hardin v. Ho-Yo-Po-Nubby, 27 Miss.

667. p. 53.
Harfly v. McCullough, 23 Gratt. 251.

p. 403.
Hargrave v. Hargrave, 9 Beav. 255-

pp. Ill, 112.
Harper v. Hampton, 1 Harr. & J. 623.

p. 370.
Harper v. Harper, 1 H. & McH. 687.

p. 370.
Harriman v. Queen Ins. Co., 49 Wis.

71. p. 103.
Harrington v. Pry, 1 Ry. & M. 90.

p. 250.
Harrington v. State, 19 Ohio St. 264.

p. 442.
Harris v. Allnutt, 12 La. 405. p. 370.
Harris v. Goodwyn, 2 M. & Gr. 405.

p. 35.
Harris v. Lester, 80 111. 303. p. 35.
Harris v. McKissock, 34 Miss. 170.

p. 54.

TABLE OF CASES CITED.

liii

Harris v. Rosenberg, 43 Conn. 227.

pp. 140, 155.
Harris v. Story, 2 E. D. Smith, 3G3.

p. 18.
Harrison v. Harrison, 9 Ala. 73. p.

815.
Harrison v. Mayor, 4 De G. M. & G.

153. p. 107.
Harrison's Case, Roscoe Cr. Ev. 56.

p. 4G5.
Harrod v. Baretto, 1 Hall. 155. p. 30.
Hiirrodt). Harrod, 1 K. & J.4. p. 106.
Hart V. Burnett, 15 Cal. 530. p. 53,
Hart V. Hart, 1 Harr. 1. p. 82.
Hart V. Newton, 48 Mich. 401. p. 36.
Hartv. Roper, 6 Ired. (Eq.) 340. p.

13.
Hurt V. Ten Eyck, 2 Johns. Ch, 108.

p. 149.
Hartwell v. Root, 19 Johns. 340; 10

Am. Dec. 2:53. p. 56.
Harwood v. Goodright, Cowp. 91. p.

147.
Harvey v. Laflin, 2 Ind. 478. p. 35.
Harvey v. Thornton, 14 lU. 217. p.

198.
Harvey v. Thorpe, 28 Ala. 250. pp.

53, 423. il-i, 426.
Harvey v. Towers, 6 Ga. 660. p. 77.
Harvey v. Tyler, p. 33.
Hatch V. Bayley, 12 Cush. 27. pp.

98, 440.
Haskell V. Com., 3 B. Mon. 342. p.

4G5.
Hastings v. Cunningham, 35 Cal. 549.

p. 35.
Hastings v. Wagner, 7 W. & S. 215.

p. 403.
Hathaway v. Addison, 48 !Me. 440.

p. 47.
Haurick v. Andrews, 9 Port. 576.

p. 5.
Haven v, Foster, 9 Pick. 112. p. 14.
Hawks V. Brigham, 16 Gray, 561. p.

664.
Hawks V. Hamar, 5 Binney, 43. p.

299.
Harden v. Hay ward, 1 Camp. 180. p.
128.

Hayes v. Bewick, 2 Mart. (La.) ICI ; 5

Am. Dec. 727. p. 212.
Hays V. State, 58 Ga. 47. p. 262.
Hayes v. Whitall, 13 N. J. Eq. 241.

p. 819.
Huynes v. Cowen, 15 Kas. 277, C37.

p". 36.
Haynes v. Haynes, 35 L. J. Ch. 303.

p. 303.
Hays & Ford, 55 Ind. 52. p. 27.
Hays V. Samuels, 55 Tex. 560. p.

846.
Hays V. Tribble, 3 B. Monr. 109. p.

197.
Haywood v. Lewis, 65 Ga. 224. p.

846.
Hazen v. Henry, 6 Ark. 86. p. 98.
Headv. Briscoe, 5 C. &P. 484; 24 E.

C. L. 419. p. 299.
Head v. Head, 1 Sim. & Stu. 150. p.

111.
Healey v. Dean, 68 Ga. 514. p. 54.
Hearn v. State, 62 Ala. 218. p. 39.
Heath v. Sanson, 2 B. & Ad. 201. p.

77.
Heath v. "Waters, 40 Mich. 457. p.

123.
Hedge v. Drew, 12 Pick. 141. p. 303.
Hedge v. McQuaid, 11 Cush. 352. p.

160.
Hefflinger v. Shutz, 16 S. & R. 4G. p.

386.
Heffner v. Wenrich, 32 Pa. St. 423.

p. 386.
Helm V. Jones, 3 Dana, 88. p. 342.
Hemmenway v. Lawner, 1 Allen, 209.

pp.113, 117. 118.
Hcmraingway v, Davis, 24 Ohio St.

150. p. 36.
Henderson v. Hoke, 1 Dev. & B 119.

p. IGO.
Henderson v. Lewis, 9 S. & R. 384 ;

11 Am. Dec. 732. pp. 211, 822,

831.
Henderson's Trusts, Re, p. 235.
Hendrich v. Bannister, 12 La. Ann.

373. p. 344.
Hendricks v. Judah, 1 Johns. 319. p.
78.

liv

TABLE OF CASES CITED.

Heninan v. Dickinson, 5 Bing. 183.

p. 388.
Hennt'U v. Lyon, 1 B. & Aid. 182. p.

251.
Henry v. Dulle, 74 Mo. 443. p. 54.
Henry v. Evans, 58 la. 5G0. p. 36.
Henry v. Root, 33 N. Y. 554. p. 358
Henthorn v. Dove, 1 Blackf. 157. p

858.
Hentsch v. Porter, 10 Cal. 555. p. 35
Hepburn v. Auld, 5 Crunch, 202. p

403.
Hepburn v. Citizens' Bk., 3 La. Ann

565. p, 95.
Herbert v. Herbert, Breeze, 282. p

304.
Hermann v. Pardridge, 79 111. 471

p. 35.
Herrick v. Malin, 22 Wend. 873. p

890.
Herring v. Goodson, 43 Miss. 392. p.

108.
Heslop V. Heslop, 82 Pa. St. 53. p.

140.
Heuss, Re, 2 Salk. 533. p. 241.
Hewes v. Platts, 12 Gray, 143. pp.

101, 276.
Hewitt V. Stephens, 5 La. Ann. 640.

p. 54.
Hewlett V. Hewlett, 4 Edw. Ch. 8.

pp. 93, 94, 436.
Heyer v. Pruyne, 4 Paige, 443. p.

316.
Hibbard v. Mill, 46 Vt. 243. pp. 98,

440.
Hickman v. Alpaugh, 21 Cal. 228. p.

370.
Hickman v. Boffman, Hardin, 349. p.

54.
Hickman v. Upsall, L. R. 20 Eq. 139.

p. 235.
Hickman v. Upsall, 4 Ch. Div. 147;

2 Id. 619. p. 2:35.
Hicks u. Keats, 4 B. & C. 71. p. 279.
Hicks V. Silliman, 93 III. 261. p. 5:J8.
Higginson v. Mein, 4 Cranch, 415. p.

816.
High, Re, 2 Doug. (Mloh.) 515. p.
358.

High am v. Stewart, 38 Mich. 513. p.

303.
Highfield v. Phelps, 50 Ga. 59. p. 57.
Hightower v. State, 58 Miss. 636. p.

36.
Hill V. Barnes, 11 N. H. 395. p. 386.
Hill V. Beach, 12 N. J. (Eq.) 31. p.

415.
Hill V. Cooley, 46 Pa. St. 259. p.

886.
Hill V. Grigsby, 32 Cal. 55. p. 370.
Hill V. Johnston, 3 Ired. (Eq.) 432.

p. 18.
Hill V. Lord, 48 Me. 463. p. 87.
Hill V. Wilker, 41 Ga. 449. p. 3C0.
Hillary v. "Waller, 12 Ves. 267. p.

338.
Hillebrant v. Burton, 17 Tex. 138.

p. 36.
Hilliard v. Gould, 34 N. H. 230. p.

60.
Hinckley v. Kersting, 21 111. 247. pp

16, 72.
Hine v. Pomeroy, 39 Vt. 211. p.

185.
Hite u. Lenhert, 7 Mo. 22. p. 370.
Hix V. WhiUemore, 4 Mete. 545. p.

179.
Hobbs V. Bibb, 9 Stew. (Ala.) 54. p.

404.
Hochreiter v. People, 2 Abb. App.

Dec. 863. p. 279.
Hodgdon v. AVright, 36 Me. 337. p.

35L
Hodgkinson v. Willis, 3 Camp. 401.

p. 250.
Hoey V. Firman, 1 Pa. St. 295; 44

Am. Dec. 129. p. 404.
Holleman v. De Wyse, 51 Ala. 95.

pp. 34, 53.
Hullman v. Johnson, Cowp. 21. p.

15.
Hollingham v. Head, 4 C. B. (n. s.)

388. p. 182.
Holloway v. State, 53 Ind. 554. p. 35.
Holman's Appeal, 24 Pa. St. 174. p.

820.
Holine V. Karpser, 5 Binney, 405. p.
77.

TABLE OF CASES CITED.

Iv

IIoliTios r. Broughton, 10 "Wend. 78.

pp. 3,j8, 370.
Hul 11108 t>. Do Camp, 1 Johns. 31. p.

854.
Holmes V. Holmes, etc., Man. Co., 37

Conn. 278. p. 202.
Holmes v. Hunt, 122 Mass. 505. p.

563.
Holmes v. Johnson, 42 Pa. St. 159.

p. 200.
Holmes v. Mallett, 1 Morris (la.), 82.

p. 358.
Hulyland, Ex parte, 11 Vesey, 10. p.

179.
Homer v. State Bk. p. 34.
Homniel v. Devinney, 39 Mich. 522.

p. 59.
Hopewell r. De Pinney, 2 Camp. 113.

p. 202.
Hopkington v. Springfield, 12 N. H.

828. p. 320.
Hopkins V. Kent, 17 Md. 117. p. 78.
Hopkiik V. Page, 2 Brock. 20. pp.

308, 330, 342.
Hopper V. Fisher, 2 Head, 258. p. 29-
Hopper V. State, 19 Ark. 743. p. 401.
Hopps V. People, 31 111. S85. p. 4 JO.
Hood V. Hood, 2 Grant's Cas. 229.

p. 1G4.
Hood V. Pearson, 67 Ind. 308. p. 35.
Hooper V.Howell, 52 Ga. ."22. p. 321.
Horan t>. Weiler, 41 Penn. St. 470.

pp. 81, 270.
Horno v. State, 1 Kan. 42. p. 438.
Horner v. State Bk., 1 Ind. 130; 48

Am. Dec. 355. p. 27.
Hoskins v. State, 11 Ga. 92. p. 262.
Hospell V. Collins, p. 112.
Houstman v. Thornton, Holt N. P.

242. p. 227.
Houghtaling v. Ball, 19 Mo. 84. p.

372.
Houliston V. Smyth, 2 C. & P. 24.

p. 90.
Hourtienne v. Schnoor, 33 ^lich. 274.

p. 54.
Houston V. Houston, 4 Ind. 139. p.

35.
Houston I'. Perry, 3 Tex. 390. p. 55.

n.>w, V.o, 1 Rw. & T. 53. p. 201.
Howard v, Boormun, 17 Wis. 459. p.

93.
Howard v. Mert, 64 N. Y. 202. p.

506.
Howard i>. Rockwell, 1 Doug, (Mich.)

315. p. 201,
Howard v. Shurtleff, 2 Mete. 20. p.

310,
Hoyt V. Newbold, 45 N. J. (.L) 219.

p. 200.
Hoyt V. Soeley, IS Conn. SIO. p. 70.
Huckvale, In re, L. R. 1 P. & D. 375.

p. 83.
Hudgins v. State, 01 Ga. 182. p. 35.
Hudson V, Messick, 1 Houst. 275. p.

34.
Hudson V. Pvcel, 5 Pa. St. 279. p.

386.
Hudson V. State, 9 Terg. 408. p. 480.
Hughes V. Debnam, 8 Jones (L.), 129.

p. 85.
Hughes V. Edmunds, 9 Wheat. 497,

p, 316.
Hughes V. Hughes, 54 Pa. St. 241.

p. 324.
Hughes V. State, 8 Humph, 75. p.

518.
Hughes V. "Wheeler, 8 Cow. 77. p.

354.
Hulick V. Scovil, 9 111. 159, p. 304.
Hull V. Augustine, 23 Wis. 383. p.

370.
Hull State, 7 Tex., App. 593. p.

583.
Hummell v. State, 17 Ohio St. 628.

p. 70.
Humphreys v. Guilow, 13 N. H. 385.

387.
Humphrey v. Humphrey, 3 P. Wms.

395, p. 314.
Hunt V. Hunt, 3 Mete. 175; 37 Am.

Dec. ISO. p. 576.
Hunt V. Massey, 2 B. & Ad. 902. p.

89.
Hunt V. Matthews, 1 Yern. 408. p.

141,
Hunt V. Pond, 67 Ga. 578. p. .?5.
Huut V. Stewart, 7 Ala. 527. p. 218.

Ivi

TABLE OF CASES CITED.

Hunt V. XJttsr, 15 Ind. 318. p. 421.
Hunter v. Bennett, 15 La. Ann. 715.

p. 163.
Hunter v. Lauder, 8 Canada L. J.

(n. s.) 17. p. 148.
Hunter, The, 1 Dods. Adm. 480.

pp. 150, 151.
Huntington v. Finch, 3 Ohio St. 445.

p. 386.
Hurst V. McNeil, 1 "Wash. C. C. 70.

p. 403.
Hutchins v. Flintge, 2 Tex. 473. p.

90.
Hutchins v. Van Bokkelen, 34 Me.

126. p. 49.
Hutton, Kc, 1 Curt. 595. p. 224.
Huzzard v. Trego, 35 Pa. St. 9. p.

55.
HyJrick v. Burke, 30 Ark. 124. pp.

358, SCO.
Hynes v. McDermott, 82 N. Y. 44.

p. 860.

I.

Illinois Cent. E. Co. v. Cragin, 71 111.

184. p. 192.
Illinois Cent. K. Co. v. Houck, 72 111.

35. 285. p. 102.
Illinois Cent. R. Co. v. Johnson, 40111.

p. 38.
Illinois Cent. R. Co. v. Phillips, 49 111.

77. 234. p. 102.
Illinois Cent. E. Co. v. Wren, 43 111.

p. 58.
Illinois Loan Co. v. Bonner, 75 111.

315. pp. 106, 108, 110.
Inches v. Leonard, 12 Mass. 379. pp.

318, 320.
Ingalls V. State, 48 Wis. 047. p. 274.
Ingraham v. Baldwin, 9 N. Y. 45.

p. 330.
Ingram v. Ingram, 4 Jones (L.), 188.

p. 57.
Inglish V. Breneman, 9 Ark, 122 ; 47

Am. Dec. 735. p. 382.
Inge V. Murphy, 10 Ala. 895. p.

367.
Inhabitants v. Inhabitants, 6 Allen

608. p. 172.

Inhabitants New Portland v. Inhab-
itants of Kingsfield, 55 Me. 370. p.
93.

Inhabitants v. Eoot, 18 Pick. 318. p.
55.

Innes v. Campbell, 1 Eawle, 75. pp.
192, 200.

Irvine v. Irvine, p. 174.

Isabella v. Pecot, 2 La. Ann. 387.
p. 176.

J.

Jacob V. U. S., 1 Brock. 528 p. 47.
Jackson v. Astor, 1 Pinney 137; 39

Am. Dec. 231. p. 34.
Jackson v. Boale, 20 Johns. 187. p.

304.
Jackson v. Clark, 18 Johns. 347. p.

93.
Jackson v. Claw, 18 Johns. (N. Y.)

347. p. 435.
Jackson v. Davis, 6 Cow. 130. p.

316.
Jackson v. Etz, 5 Cow. 319. p. 197.
Jackson v. Hudson, 3 Johns. 375; 3

Am. Dec. 500. p. 410.
Jackson v. Irvin, 2 Camp. 48. p.

1G5.
Jackson v. King, 5 Cow. 237; 15 Am.

Dec. 468. p. 257.
Jackson v. Miller, 6 Wend. 228 ; 21

Am. Dec. 316. p. 140.
Jackson v. Moore, 13 Johns. 516; 7

Am. Dec. 379. p. 404.
Jackson v. Murray, 7 Johns. 6. pp.

404, 410.
Jarbor v. McAfee, 7 B. Monr. 282.

p. 194.
Jackson ij. McCall, 10 Johns. 377; 6

Am. Dec. 343. pp. 304, 410, 427.
Jackson v. McVej', 18 Johns. 330.

pp.131, 142.
Jackson v. New Mil ford Bridge Co.,

84 Conn. 266. p. 27.
Jackson v. Osborn, 2 Wend. 535; 20

Am. Dec. 040. p. 384.
Jackson v. Pesked, 1 M. & S. 237.

p. 35.

TABLE OF CASES CITED.

Ivii

Jackson v. Phipps, 12 Julins. 421.

p. 804.
Jackson v. Pierce, 10 Johns. 415. p.

842.
Jackson v. Potter, 4 Wend. G72. p.

163.
Jackson v. Pratt, 10 Johns. 381. p.

818.
Jackson v. Schoonmaker, 7 Johns. 13.

p. 404.
Jackson v. Schafer, 11 Johns. 317.

p. 56.
Jackson v. Sharp, 9 Johns. 1G5. pp.

404, 415.
Jackson v. Smith. 7 Cow. 717. p .

18C..
Jackson v. Wood, 12 Johns. 242.

pp. 316, 318.
Jackson v. Woolsey, 10 Johns. 453.

p. 159.
Jackson v. Van Dusen, 6 Johns. 154.

p. 179.
Jackson School Tp. v. Hadley, 59

liul. 634. p. 54.
Jakway v. Jenison, 46 Mich. 521.

p. 54.
James v. Brown,5 B. & Aid. 243. p.

47.
James v. Howard, 2 G. «& Dav. 264.

p. 34.
James R. , etc., Co. v, Littlejohn, 18

Gratt. 53. pp. 98, 276.
Jarmain v. Cooper, G M. & W. 828.

p. 259.
Jarvis V. Albro, 67 Me. 310. pp.

808, 316.
Jay V. Carthago, 48 Me. 853. p.

47.
Jayne v. Price, 6 Taunt. 326. pp.

448, 5'^3.
Jee y. Audley, 1 Cox, 325. p. 303.
Jefferson i». Mayor, 7 Ga. 181. p.

64.
Jefferson County v. Ferguson, 13111.

83. p. 808.
Jells t). Ballard, 1 B. & P. 408. p.

465.
Jenkins v. Pnrkhill, 25 InJ. 473. p.

64.

Jenkins w. Pcckinpaugh, 40 Ind. 133

p. 239.
Jenne v. Ward, 2 Stark. 327. p.

146.
Jim u. State, 5 Humph. 146. p. 512.
Joannes v. Bennett, 5 Allen, 169. p.

157.
Johanna r. Emelio, The, 18 Jur. 703.

p. 150.
John Hancock Ins. Co. v. Moore, 34

iMich. 41. p. 197.
Johnson v. Carpenter, 7 Minn. 170.

p. 85.
Johnsonc. Chambers, 12 Ind. 102. p.

370.
Johnson v. Duke of Marlborough, 2

Stark. 313. p. 888.
Johnson v. Farwell, 7 Me. 370. pp.

102, 277.
Johnson v. Johnson, 1 Dessau. 595.

p. 104.
Johnson v. Long, 72 Mo. 210. p.

36.
Johnson v. State, 17 Ala. 622. pp.

498, 507, 534.
Johnson v. State, 47 Ala. 31. p. 39.
Johnson v. Slate, 10 Tex. App. 577.

p. 459.
Johnson v. Underbill, p. 558.
Johnson v. U. S., 14 Ct. of CI. 276.

p. 55.
Jones V. Alderman, 104 Mass. 4G1. p.

54.
Jones V. Fletcher, 41 Me. 254. p.

54.
Jones V. Graham, 36 Ark. 383. p.

84.
Jones V. Howland, 8 Mote. 306. p.

270.
Jones V. Jones, 9 M. & W. 75. p.

254.
Jones t). Knauss, 31 N. J. (Eq.) 609.

p. 148.
Jones V. Lewis, 8 W. «S; S. 15. p.

661.
Jones V. ^luisbach, 26 Tex. 205. p.

65.
Jones w. Murphy, 8 W. & S. 301. p.

147.

Iviii

TABLE OF CASES CITED.

Jones V. Nceloy, 72 111. 419. p. o").
Jones V. Newman, 1 W. Bhick. GO.

p. 258.
Jones V. Parker, 20 N. H. 31. p.

250.
Jones V. Kandall, Cowp. 38. p. 5.
Jones V. Ilicketts, 7 Md. 108. p. 264.
Jones V. Rives, 3 Ala. 13. p. 68.
Jones V. State, 49 Ind. 540. p. 518.
Jones V. State, 26 Miss. 247. p. 525.
Jones V. Vestry of Trinity Church, 19

Fed, Pvop. 59. p. 68.
Jones V. Wilder, 28 Minn. 239. p.

36.
Jordan v. Ingram, 57 Ga. 92. p. 35.
Jordan v. Goblin, 12 Cal. 100. p.

83.
Jordan v. Stewart, 23 Pa. St. 246. p.

399.
Joudin V. Boyce, 33 Mich. 802. p.

381.
Justice V. Lang, 52 N. Y. 823. p.

556.

Kane v. Johnston, 9 Bosw. 154. p. 176.
Kansas Pac. K. Co. v. Miller, 2 Cal.

443. p. 243.
Kay V. Connor, 8 Humph. 624 ; 49

Am. Dec. 690. p. 5.
Keane v. Cannovan, 21 Cal. 291

(1863). p. 53.
Kearles v. Christie, 47 Mich. 594.

p. 36.
Keeble's Case. Littleton, 370. p. 195.
• Keech v. Rinehardt, 10 Pa. St. 20. p.

239.
Keeley v. Garner, 13 Ind. 400. p.

34.
Keep V. Grannis, 3 Nev. 548. p. 28.
Kelley v. Drew, 12 Allen, 107. p.

585.
Kelley v. Ford, 4 la. 140. p. 77.
Kelley v. People, 55 N. Y. 573. pp.

548, 549.
Kelly V. Creen, 53 Pa. St. 303. p.

55.
Kelly V. Drew, 12 i^len, 107. p.

449.

Kelly V. Volney, 5 Pcnn. L. J. 300.

p. 253.
Kelsoe v. State, 47 Ala. 573. p.

493.
Kempe v. Kennedy, 5 Cranch, 173.

pp. 27, 30.
KenduU v. Galvin, 15 Me. 131 ; 32

Am. Dec. 141. p. 68.
Kendall v. Kingston, 5 Mass. 524. p.

563.
Kenny v. Public Adm., 2 Bradf. 319.

p. 855.
Kent V. Bottoms, 3 Jones Eq. 69.

p. 142.
Kenton Co. Ct. v. Bank, 10 Bush,

529. p. 93.
Kenyon v. Smith, 24 Ind. 11. p. 370.
Kermott v. Ayer, 11 Mich. 181. p.

370.
Kern v. Strasburger, 71 111. 303. p.

35.
Kershaw v. Wright, 115 Mass. 361.

p. 185.
Kerwick v. Steelman, 44 Ga. 197. p.

35.
Keyworth v. Hill. 3 B. & Aid. 685 (5

E. C. L. 422). p. 299.
Kidder v. N orris, 18 N. H. 632. pp.

101, 276.
Kidder v. Stevens, 60 Cal. 415. p.

103.
Kidgill V. Moor. 9 C. B. 864. p. 85.
Kilburn v. Bennett, 8 Mete. 199. p.

172.
Kilburn v. Ritchie, 2 Cal. 14-5. p. 3-5.
Kilcrease v. Blythe, 6 Humph. 379.

pp. 27, 29.
Kilpatrick v. Brashaer, 10 Heisk. 372.

pp. 329, 836, 842.
Kilpatrick v. Frost, 2 Grant's Cas.

196. p. 47.
Kimball v. Lampre3% 19 N. H. 215.

p. 55.
Kimball v. Whitney, 15 Ind. 280. p.

420.
Kincaid v. Howe, 10 Mass. 203. pp.

258, 577.
Kincaid v. Kincaid, 8 Humph. 17. p.

347.

TABLE OF CASES CITED.

lix

Kinclielow v. State, 5 Uuinph. 9. p

483.
King V. Arundel, Hob. 100. p. 140
Xiiii^ V. Coulter, 2 Grant's Cas. 77. p

8:3.
Kin^' V. Dixon, 3 M. & S. 12, pp

2h-2, 407.
Ku'r V. Doolittlp, 1 Head, 77. p. 14
King V. Fell, 1 Bald. SS'J. p. 28.
King V. Fuwler, 11 Pick. S02. pp

192, 197.
King V. Uarvey, 3 D. & R. 4G4. p

2G2.
King V. Hawkins, 10 East, 211. pp

94, 'ISO.
King V. Hopkins, 57 N. H. 334. p

5i;8.
King V. Inhabitants of All Saints, 7

B. & C. 785. p. SO.
King V. Inhabitants of Gloucester-

sliirP, 2 Barn. & Aid. 886. pp.

448, 583, 584.
King V. Inhabitants of Hnrborne, 2

Ad. &E. 510. pp. 448, 534.
King V. Inhabitants of Hulcott, 6

T. R. 585. p. 28.
King V. Inhabitants of Sonaton, 5 Ad.

&E;1. 180. p. 118.
King V. Kelly, 28 Ind. 89. p. 75.
King V. Liiffc, 8 East, 12. p. 1 15.
King V. Lyme Regis, 1 Dougl. 159. p

34.
King V. Paddock, 18 Johns. 141. p

200.
King V. State, 9 Tex. App. 553. p,

459.
King V. Stevens, Burr. 4337. p. 311
King V. Turner, 5 M. & S. 200. p

4G5.
King V. Wbiston, 4 Ad. & Ell. 667

p. 56.
Kingston V. Leslie, 10 S. & R. 883

pp. 405, 406.
Kinnoy v. Uosea, 3 Harr. (Del.) 77

pp. 370.
Kinsler v. Holmes, 2 S. C. 483. p

820.
Kiri hner v. Lewis, 27 Ind. 22. p

853.

Eirkpntrick v. Lnngpher, 1 Cranch.

C. C. 85. p. 315.
Klein v. Landman, 29 Mo. 259. pp.

419, 585.
Knapp V. White, 23 Conn. 529. p.

272.
Knickerbocker v. People, 43 X. Y.

177. p. 516.
Knight tj. Clements, 8 Ad. & El. 215.

p. 388.
Kniglitr. Coleman, 19 N. H. 118; 45

Am. Dec. 147. p. 414.
Knight V. Nepean, 2 M. & "\V. 895.

p. 201.
Knight V. Pugh, 4 W. & S. 415. p.

77.
Kinselyt). Sampson, 100 111. 573. p.

89.
Knowles, Ex parte, 2 Cranch C. C.

576. p. 93.
Knowlton v. Culver, 1 Chand. 214.

p. 36.
Kraum v. McDowell, 8 N. & S. 138.

p. 561.
Krifl V. Com., 6 Bush (Ky.), 302. p.

459.

Lackawanna Iron Co. v. Fales, 55 Pa.

St. 90. p. 55.
Lackey v. Bostwick, 54 Oa. 45. p.

35.
Lady Bryan Gold, etc., Co. v. Lady

Bryan Mining Co., 4 Mo. 414. p.

36.
Lady Stafford v. Llewellin, Skin. 78.

p. 417.
Lady Strathmore v. Bowes, 1 Yes. 22.

p.'l45.
Lady Superior v. !McNamara, 3 Barb.

Ch. 375; 49 Am. Dec. 184. p. 303.
Laing v. Colder, 8 Pa. St. 479; 49

Am. Dec. 533. p. 5.
L;ij..ye V. Priinm, 3 ilo. 529. p. 200.
Lake V. People, 1 Park. C. C. [>uO. p.

493.
Lnkin v. Lakin. 34 Beav. 443. p. 239.
Lambo V. Orfon, 29 L. J. (Ch.) 283.

p. 201.

Ix

TABLE OF CASES CITED.

Lancaster v. "Washington L. Ins. Co.,

,62 Mo. 127. pp. 230, 232, 239.
Lancej' v. Bryant, 30 IMe. 4G6. p. 13.
Landis v. Scott, 32 Pa. St. 498. pp.

148, 149.
Landr}' v. Martin, 15 La, 1. p. 47.
Lane v. Farmer, 13 Ark. 64. p. 347.
Lano V. Ironmonger, 13 M. & W. 368.

p. 280.
Lanergan v. People, 39 N. Y. 41. pp.

279, 542.
Lane's Case, 1 De G., J. & S. 504.

p. 82.
Langston v, Marlis, 68 Ga. 435. p.

35.
Lapsley v. Grierson, 1 H. L. Cas. 500.

pp. 448, 584.
Laramore v. McKenzie, CO Ga. 532.

p. 35.
Larimore v. Wells, 29 Ohio St. 13. p.

347.
Lathrop v. Donaldson, 22 la. 235. p.

77.

Laughlin v. Chicago, etc., R. Co., 28

Wis. 204 ; 9 Am. Rep. 493. p. 1C6.

Lauvre, Re, 6 La. Ann, 530. p. 54,

Lavender v. Hudgens, 82 Ark. 764,

pp, 94, 436,
Lawhorn v. Carter, 11 Bush, 7, p.

656.
Lawrence, The, 15 Fed. Rep, 635, p,

120.
Lawrence v. State, 68 Ga. 289. p.

262.
Laws V. Rand, 3 C. B. (n. s.) 445. p.

89.
Lawson v. Obenr, 7 Ala. 784. p. 69.
Lawson v. State, 20 Ala. 66. p 492.
Lawton v. Sweeney, 8 Jur. 694. p.

122.
Lawton v. Rivers, 2 McCord (S. C),

445; 13 Am. Dec. 741. p. 405,
Lay V. Lawson, 23 Ala. 377. pp. 38,

423.
Leak v. Elliott, 4 Mo. 450. p. 370.
Learned v. Cooley, 43 Miss, 709. p.

232, ^

Leavonworth v. Brockwaj', 2 Hill, 201,
p, 372.

Leavitt v. Smith. 14 Ala. 279. p. 34,
Leconfleld v. Lonsdale, L. R. 5 C. P.

657. p. 404.
Ledoux V. Jamis,on, 18 La. Ann. 130.

p. 54.
Leo V. Johnstone, L. R., 1 H. L. Sc.

420. p. 35.
Leo V. Mendel, 40 111. 359. p, 257,
Lee V. Wharton, 11 Tex. 61, p. 65,
Leedom v. Lombaert, 80 Pa, St. 381.

p. 55.
Leeds v. Cook, 4 Esp. 256. p. 146.
Logg V. Legg, 8 Mass. 99. p. 370.
Legge V. Edmonds, 25 L. J. (Ch.) 125.

pp. 115, 118.
Lehman v. Tallahassee Man. Co., 64

Ala. 667. p. 77.
Leigh ton v. Orr, 44 Iowa, 680. p. 98.
Lei per v, Irwin, 5 Yerg. 97. p. 329.
Leland v. Cameron, 81 N, Y, 115.

p, 55,
Leman v. Neunham, 1 Ves. sr, 5L

p. 316,
Lenoir v. Rainey, 15 Ala. 667, p.

404.
Lepoit V. Browne, 1 Salk. 7. pp.

259, 577,
Leport V. Todd, 32 N, J. L. 128. p.

163.
Lesley v. Nones, 7 S. & R. 4 p.

320.
Leslie v. Fisher, 62 111. 118. p. 50.
Letcher v. Kennedy, 3 J. J. Marsh,

701. p. 34.
Letts V. Brooks, Hill & Denio, 361.

p. 193.
Levers v. VanBuskirk, 4 Pa. St. 314.

p. SCO.
Levy V. Hodges, Jao. 585. p. 303.
Levy V. Merrill, 52 How. Pr. SCO, p.

308.
Lewis V. Morley, 4 Dev. & B. (L.)

323 ; 84 Am. Dec. 379. p. 2:;0.
Lewis V. Post, 1 Ala. 65. p. C8.
Leykiiuff v. Ashford, 12 Moore, 281.

p. 388.
Life and Fire Ins. Co. v. Mechanic
F. Ins. Co., 7 Wend. 31. pp. 130,
138.

TABLE OF CASES CITED.

Ixi

Lilleshall, Re., 7 Q. B. 1 j3. p. 171
Lilly V. Waggoner, 27 111. 895. pp

170, 280.
Lincoln v. Battelle, 6 Wend. 47G

p. 370.
Linn v. Montross, 5 Tex. 511. p. 55,
Liiiscott V. Trask, 85 Me. 150. p

420.
Lindsay v. Conn., etc., R. Co. 27 Vt

6-13. p. 102.
Lipscomb v. DeLamos, 68 Ala. 592

840.
List V. Rodney, 83 Pa. Hi. 483. p,

803.
Little V. Herndon, 10 Wall. 81. p

881.
LitLlo V. Marsh, 2 Ired. Eq. 28. p,

140.
Little V. Palister, 4 Me. 209. p. 419
Littlcfit'ld V. Inhabitants, 50 Me. 475

p. 173.
Litllojohn V. Ferguson, 18 Gratt. 53.

pp. 98, 276.
Little Rock, etc., R. Co. v. Finley, 37

Ark. 502. p. 103.
Little Rock, etc., R. Co. v. Henson,

38 Ark. 415. p. 103.
Livingston v. Livingston, 4 Johns

Ch.'287. p. 816.
Livingston v. Rogers, 2 Johns. Cas

488. p. 159.
Lobb V. Stanley, 5 Q. B. 574. p,

134.
Locke V. Huling, 24 Tex. oil. p

870.
Lockhart v. White, 18 Tex. 102. pp,

44^, 449, 583, 584.
Loeffner v. State, 10 Ohio St. 598

p. 459.
Lomiix V, Holmdon, 2 Str. 940. p

803.
Long V. McDougald, 23 Ala. 413

p. 84.
Long V. State, 46 Ind. 583. pp. 86,

93.
Loomis V. Green, 7 Me. 886. p. 140.
Loomis I'. Mowrj-, 8 Hun, 811. p.

77.
Loomis V. Riley, 24 111. 307. p. 13.

Lopez V. Andrews, 3 Man. & R. 320.

p. 417.
Lord Pelham v. Pickingill, 1 T. R.

381. p. 427.
Loring V. Steinman, 1 Mete. 210. p.

200.
Louden v. Walpole, 1 Ind. 821. p.

205.
Louisiana v. Carr, 25 La. An. 407.

p. 551.
Lowe V. Foulke, 103 111. 58. p. 102.
Lowe V. Stowell, 4 Jones L. 235. p.

315.
Lowell V. Todd, 15 U. C. C. P. 306.

p. 122.
Loza V. State, 1 Tex. App. 488. p.

274.
Lucas r. Brooks, 23 La, Ann. 117.

pp. 69, 148.
Lucas V. Ladew, 28 Mo. 342. p.

8.59.
Lucas V. Novisdienski, 1 Esp. 296.

p. 352.
Ludlow V. Van Camp, 6 N. J. Eq. 113 ;

11 Am. Dec. 529. p. 308.
Lum V. State, 11 Tex. (App.) 483.

p. 176.
Luinley v. Wagner, 1 De G. M. & G.

604. p. 121.
Luno V. Boston Marine Ins. Co., 6

Fed. Rep. 568. p. 102.
Lushington v, Boldero, 15 Beav. 1.

p. 803.
Lyddon v. Ellison, 19 Beav. 505. p.

"803.
Lyle V. Bradford, 7 T. B. Mon. 116.

p. 90.
Lynch v. Com., 77 Pa. St. 205. p.

459.
Lynde v. Dennison, 3 Conn. 891.

p. 808.
Lyon V. Adde, 63 Barb. 89. p. 808.
Lyon V. George, 44 Md. 295. pp.

"l7, 73.
Lyon V. Green Bay, etc., R. Co., 42

Wis. 538. p. 55.
Lyon V. Guild, 5 Ileisk. 175. p.

'327.
Lyon V. Odell, 65 N. Y. 23. p. 308.

ixii

TABLE OF CASES CITED.

Lyon tJ. nicbmond. 2 Johns. Ch. 51.

,8.
Lytle V. Colts, 27 Pa. St. 193. p. 55.

M.

Madden v. State, 68 Ga. 5G3. p. 35.
Magce V. Scott, 9 Cush. 148. p.

104.
Ma-uiro v. People, 5 N. T. (T. & C.)

682. p. 519.
Mahoney v. iliddleton, 41 Cal. 41. p.

35.
Main, In re, 1 Sw. v. Tr. 225. p.

225.
Malarin v. IJ. S., 1 Wall. 288. p.

381.
Male V. Eoberts, 3 Esp. 163. p. 369.
Mallory v. StoUer, 6 Ala, 801. p.

304.
Malpas V. Clement, 19 L. J. (Q. B.)

4C5. p. 89.
W anchester Bank v. Fellows, 28 N. H.

394. p. 51.
Manning v. Ins. Co., 100 U. S. 693.

p. 569.
Mansfield Coal, etc., v. McEnery, 10

Morris, 185. p. 573.
Mardis v. Shackleford, 4 Ala. 493.

p. 68.
Margaret Gottfried's Case, 4 Leg.

Obs. 101. pp. 496, 498.
Marine Investment Co. v. Haviside,

L. R. 5H. L. Cas.624. p. 83.
Markel v. Evans, 47 Ind. 828. p

27.
Marr v. Gilliam, 1 Cold. 488. p

403.
Marshall v. Oakes, 51 Me. 809. p

279.
Marshall v. Stevens, 8 Humph, 159

47 Am. Dec. 601. p. 59.
Marshall v. Toms, 5 Q. B. 115. p

50.
Marsters v. Lash, 51 Cal. 623. p. 370
Marston v. Downes, 1 Ad. & Ell. 32

p. 135.
Marston v. Forward, 6 Ala. 347. p.

77.

Marston v. Wilcox, 2 111. 270. p.

844.
Martin v. Fishing Ins. Co., 20 Pick.

889 ; 32 Am. Dec. 220. pp. 102,

16G.
Martin v. Hazard Pow. Co., 2 Col.

597. p. 370.
Martin v. State, 28 Ala. 71. p. 541.
Martindale v. Falkner, 2 C. B. 715.

pp. 7, 10.
Mason v. Mason, 1 Meriv. 807. p.

241.
Mason v. State, 82 Ark. 239. p. 435.
Mason r. Wash, Breesc, 16. p. 370.
Mather v. Trinity Church, 3 S. & K.

509; 8 Am. Dec. 663. pp. 404,

416.
Matthews v. Coalton, 9 Mo. 705. p.

881.
Matthews v. Lanier, 83 Ark. 91. p.

95.
Matthews v. Offley, 3 Sumn. 115. p.

564.
Matthews v. State, 9 Tex. (App.) 108.

p. 537.
Mattcson v. Ellsworth, 33 Wis. 488.

p. 353.
Math i as w. Misnard, 2 C. & P. 353.

p. 880.
Maverick v. Austin, 1 Bailey, 59. p.

84.
Mawich v. Elsey, 47 Mich. 10. p.

36.
Maxwell v. Deens, 46 Mich. 35. p,

86.
Maxcy v. Williamson Co., 72 111. 206.

35.
May V. Gamble, 14 Fla. 467. p.
. 853.
Maybee v. Sniffen, 2 E. D. Smith, L

p. 384.
Mayhcrr. People, 10 Mich. 212. pp.

271, 473.
Mayhugh, Rosenthal, 1 Cinn. Sup.

Ct. 492. p. 200.
Maynard v. Maynard, 10 Mass. 456.

p. 303.
Mayor of Atlanta v. Perdue, 50 Ga.

607. p. 72.

TABLE OF CASES CITED.

Ixiii

Mayor of Baltimoro v, rJaltimnrc,

etc., II. Co., 6 Gill, 288 ; 48 Am.

Dee. 5C0. p. G8.
Miiyor of BuUimoro v. Noraian, 4 Md.

852. pp. 45:1, 589,
Miiyor of Kingston v. Horner, 1

Cowp. 102. pp. 3.30, 427.
Mead V. Parker, 115 Mass. 413. p.

201.
Mears v. Graham, 8 Blackf. 144. pp.

6, 2(34.
Mechanic's Bk. t;. Wright, 53 Mo. 153.

p. 356.
Mechanic's, etc., Bk. v. Union Bk.,

22 Wall.27r,. pp.27, 47.
Medlock V. Brown, 4 Mo. 379. p. 20.
Mcech V. Smith, 7 Wend. 315. pp.

IG, 73, 557.
Meighen v. Bank, 25 Penn. St. 288.

p. 185.
MelJrura v. Clark, Morris (la ), 130.

p. 89.
Mellcdge V. Boston Iron Co., 5 Cush.

158. pp. 353, 354.
Melvin v. Locks & Canals, 17 Pick.

255. p. 403.
Melvin v. Stevens, 84 K C. 78, p. 70.
Mendenhall v. Gateh', 18 Ind. 150.

p. 358.
Meiikins v. Lightner, 18 111. 282. p.

179.
Mercer v. Doe, 6 Ind. SO. p. 58,
Merchant v. North, 10 Ohio St. 251.

p. 36.
Merchants' Dis. Trans. Co. v. Joesting,

89 111. 152. p. 35,
Meredith v. Santa, Clar. Min, Co.

lCal.617. p. 34.
Merrill v. Douglass, 14 Kas. 304. p.

59.
Morrill v. Emery, 10 Pick. 507. p.

304.
Merrill v. Khodes, 37 Ala. 452. p.

304.
Merrills v. Swift, 18 Conn. 207; 46

Am. Dec. 315. p. 303.
Merrit f. Baldwin, 6 Wis. 4.';9. p. 34.
M'rrilt V. Thompson, 1 Hilt. 550. p.

224.

Mervin v. Ward, 15 Conn. 377. p.

1.3G.
I\ressert>, Lewis, 20 Tex, 219. p. 370.
Meyer v. McCabe, 73 Mo. 236. p.

858.
Mickee v. Hicks, 19 Kns. 578. p. 30,
Miles V. Collins, 1 Mete, (Ky.) 311,

p, 300,
Miles V. Knight, 12 Jiir. COG. p, 303.
Miller v. Beates, 3 S. & P. 490; 8

Am, Dec. 658. p. 2.';0.
Miller v. Burke, 68 N. Y. 625, pp.

18, 74.
Miller r, Evans, 2 Cranch C. C. 72.

p. 323.
Miller v. Hackley, 5 Johns. 383. p.

186.
ISIiller V. Hays, 20 Ind. 380. p. 54.
Miller v. Ins. Co., 2 McCord (S. C),

336; 13 Am. Dec. 734. p. 102.
:Miller v. Jones, 32 Ark. 337. p. 124.
Miller v. Kingsbury', 8 Fla. 356. p.

35.
Miller v. Mclntyrc, 9 Ala. 638 . p.

77.
Miller v. People, 39 111. 400. p, 542.
Miller v. Smith, 16 Wend. 425, p.

320.
Miller v. Southwestern R. Co., 55 Ga.

143, p. 58,
Miliken v. Martin, 66 111, 13. p. 331,
[Millay v. Butts, So Me. 139, p. 420,
Milledge v. Gardner, 33 Ga. 397, p.

330,
Milleham's Trusts, 15 Bcav. 537. p.

238.
Millner's Estate, L.R. 14 Eq. 245, p.

245,
Million V. Riley, 1 Dana, 359 ; 25 Am.

Dec. 149. p. 405,
Mills V. Bk. of U. S., 1 Wheat. 431.

p. 17, 73.
Mills V. Hyde, 19 Yt. 59. p. 347.
^lills V. Johnson, 17 Wis. 598. p.

55.
Miltenbergeru. Coyle, 27 Pa. St. 170.

p. 154.
Minor v. Edwards 12 Mo. 137; 49

Am. Dec. 121, p. G8,

Ixiv

TABLE OF CASES CITED.

Minor v. ilechanics' Bk., 1 Pet. 46

p. 35.
Minter v. Crommelen, 18 How. 87

p. 55.
Mitchell V, Bromberger, 2 Nev. 53

p. 36.
Mitchell f. Mitchell, 8 Ala. 421. p

304.
Mitchell V. Napier, 22 Tex. 120. p

120.
Mitchell V. Kyan, 8 Ohio St. 377. p

304.
Mitchell r. State, 58 Ala. 417. p. 39,
Mitchell V. Walkor, 2 Aik. (Vt.) 266;

16 Am. Dec. 710. p. 405.
Mobile Fire Ins. Co. v. Miller, 58 Ga.

420. p. 35.
Mobley v. Ryan, 14 111. 51. p. 78.
Moehring v. Mitchell, 1 Barb. Ch. 265.

p. 242.
Moffett V. Yarden, 5 Cranch C. C.

658. p. 200.
Mondragon v. State, 33 Tex. 480. p.

618.
Monroe v. Douglass, 5 N. Y. 452. p.

370.
Monson v. Palmer, 8 Allen, 551. p

565. .
Montgomery v. Bevans, 1 Sawy. 660.

p. 201.
Montgomerj' v. Bruere, 4 N. J. (L.)

266. p. .S42.
Montgomery v. Merrill, 62 Cal. 386.

p. 34.
Montgomery v. Montgomery, 3 Barb.

Ch. 132. p. 108.
Montgomery Plank Eoad Co. v.

■^Vebb, 27 Ala. 618. p. 175.
Mooers v. Bunker, 29 N. H. 431. p.

257.
Moore v. Bare, 11 Iowa, 198. p. 67.
Moore v. Briggs, 14 Ala. 700. p. 34.
Moore v. Des Arts, 2 Barb. Ch. 636.

pp. 16, 72.
Moore v. Harrisburg Bank, 8 Watts,

138. p. 306.
Moore v. Hawks, 2 Aik. Vt. 390. p.

428.
Moore v. ^'cil, 39 111. 256. p. 84.

Moore v. Parker, 12 Ired. (L.) 123.

p. 201.
Moore v. Smith, 81 Pa. St, 183. p.

324.
Moore v. State, 52 Ala. 424. p. 39.
Moore V. Titman, 38 111. 358. pp.

38, 57.
Mordecai v. Beall, 8 Port. 535. p.

124.
Morford v. Peck, 46 Conn. 384. p.

100.
Morgan v. Chetwynd, 4 F. & F. 451.

p. 280.
Morgan v. Ravey, 6 H. «& N. 265. p.

558.
Morgan v. State, 12 Ind. 419. pp.

34, 39.
Morgan v. Whitmore, 6 Ex. 713. p,

89.
Moriarty v. London, etc., R. Co., L.

R. 5 Q. B. 314. p. 143,
Morris v. Angle, 42 Cal. 236. p.

35.
Morris v. Davies, 5 CI. & F. 1G3. pp.

116, 117.
Morris v. Davis, 5 CI. & F. 243. pp.

112, 115.
Morris v. Landauer, 48 Iowa, 234. p.

261.
Morris v. Ogles, 56 Ga. 592. pp. 35,

40.
Morris v. State, 25 Ala. 57. p. 84.
Morris v. Vanderin, 1 Dall. 67. p.

386.
Morrison v. N. Y. Cent. R. Co., 63 N.

Y. 643. p. 192.
Morse v. Presby, 25 N. H. 302. p.

33.
Mortimer v. Craddock, 17 Jur, 45.

p. 141.
Morton v. Rogers, 14 Wend. 570. p.

77.
Mostyn v. Fabrigas, Cowp. 174. p.

369.
Motz V. Moreau, 13 Moore P. C. 376.

p. 309.
Moye V. State, 66 Ga. 740. pp. 529,

545.
Moyesu. Griffith, 35 Cal. 556. p. 85.

TABLE OF CASES CITED.

Ixv

Muckleroy v. Bethany, 27 Tex. 5j1.

p. C97.
Miillnly V. AValsh, Irish Rep. G C. L.

8l5. p. 108.
Mullen V. Pryor, 12 Mo. 307. p.

174.
Muiiro V. Cooper, 5 Pick. 412. p. 77.
Munroe v. Gates, 48 Me. 4G3. pp. 82,

87.
Murdock v. State, 08 Ala. 5G7. pp.

190, 581.
Murphy v. Coats, 33 N. J.(Eq.) 424.

p. 804.
Murphy v. Com., 23 Grat. 9G0. pp.

2GG, 4G9.
Murphy V. Collins, 121 ilass. G. p.

873.
Murphy, In ro, 8 C. & P. 310. p. 47.
Murphy v. Orr, 32 111. 489. p. 1G7.
Murphy r. People, 37 111. 447. pp.

266, 4C9.
:Murphy v. State. 54 Ala. 178. p. SO.
Murpliy V. State, 37 Ala. 142. pp.

26G, 469, 473.
Murphy's Case, 4 City Hall Eec. 42.

p. 513.
Murray v. Kelley, 23 Kas. 666. p. 36.
Murraj' v. ^Murray, 6 Ore. 18. p. 583.
Murray-, Ro, 1 Curt. 596. p. 241.
Murrell v. State, 46 Ala. 89. p. 537.
Musser v. Price, 4 East, 197. p. 3o4.
Mussey v. "White, 3 Me. 200. p. 55.
Myers v. Com., 83 Pa. St. 141, p.

459.
Myers v. Turner, 17 111. 179. p. 19.
McAlccrr.McMurray, 58 Pa. St. 120.

p. 5G9.
McAlcxander v. Wright, 3 T. B.

M.'n. 189. p. 50.
McAllister v. Kcab, 4 Wend. 483 ; 8

Id. 109. pp. 16, 73.
Mc'Alistcr v. State, 17 Ala. 434. pp.

179, 459.
Mc Anally v. O'Neal, 56 Ala. 299. p.

358.
McArthur i'. Carrie, 32 Ala. 75. p.

420.
McC:ill V Doe, 17 Ala. 533. p. 404.
McCaller v. State, 49 Ala. 40. p. 39.
e

McCnrteec.|Caramcl. 1 Barb. Ch. 214

p. 214.
ilcCartuey v. Bone, 40 Ala. 533. p

320.
MeCarty v. McCarty, 2 Strobh. (L.) (.

47 Am. Dec. 585. p. 417.
:McCkUau V. Crofton, 6 ile. 334. p

3:;G.
31cClure V. Hill. 36 Ark. 273. p. 28
MLCuiub V. Wright, 5 Johns. Ch

2G3. p. 197.
McCord V. High, 24 Iowa, 336. pp

2;6, 469, 473.
McCormick v. Fitzmorris, 39 Mo. 24

p. 381.
JJcCorry v. King, 8 Humph. 267 ; 39

Am. Dec. 165. p. 404.
McCraney v. Alden, 4G Barb. 274. p.

372.
McCulloch V. Norwood, 58 N. Y. 567.

p. 370.
McCutchin v. Piatt, 22 Wis. 561. p.

55.
McDonald v. Nelson, 2 Cow. 139; 14

Am. Dec. 43 (1823). p. 53.
McDonough v. O'Neil, 113 Mass. 92.

p. 120.
McDowell V. Goldsmith, 6 Md. 319.

McGahey v. Alston, 2 M. & W. 206.

p. 49.
McGrews v. McGrews, 1 St. & P. 30.

p. 34.
:McGuire v. State, 37 Ala. 161. p. 39.
McKeo V. Copelin, 2 Cent. L. J. 813.

p. 213.
:McKec V. McKee, 48 Ga. 332. p. 35.
McKcnzie v. State, 26 Ark. 834. pp.

459, 5-52.
McKenzle v. Stevens, 19 Ala. 692. p.

irs.

Mclvinder v. Littlejohn, 4 Ired. (L.)

66, 198. p. 336.
McLain v. Winchester, 17 Mo. 49. p,

279.
McLean v. Slate, 16 Ala. 672. p.

179.
MoLear v. Ilunsicker, 29 La. Ana

539. p. 358.

Isrv'i

TABLE OF CASES CITED.

McLellnn v. Crofton, G Me. 307. pp.

808, 340.
McLcod V. Wakelp}', 3 C. & P. 311.

p. 189.
McMuhon v. Harrison, 6 N. Y. 443.

p. 181.
McMuhon V. McElroy, Ir. Kep. 5 Eq.

1. p. 237.
McMichacl v. Hardee, 68 Ga. 831. p.

85.
McMicken v. Beauchamp, 2 La. 290.

p. 881.
McMinn v. "Whelan, 27 Cal. 300. pp.

33, 257.
Mcilullan v. Mackenzie, 2 G. Greene

868. p. 68.
McNair v. Hunt, 5 Mo. 300. p. 54.
McNair v. Kagland, 1 Dev. (Eq ) 533.

p. 200.
McXeill V. State, 47 Ala. 503. p. 39.
McNorton v. Akers, 24 Iowa, 3G9.

pp. 84, 39.
McNultj V. Hurd, 86 N. Y. 547. p.

305.
McPherson v. Cunliff, 11 S. & E. 422,

p. 427.
McEeynoldsu.McCord, 6 Watts, 288.

p. 156.

N,

Naisor v. Brockwaj', Eich. Eq. Cas.

449. p. 200.
Napper v. Saunders, Hutton, 118. p.

195.
Nebbcttu. Cunningbam, 27 Miss. 292.

p. 54.
Nelson V. Cent. E. Co., 48 Ga. 152.

p. 20.
Nelson v. Lemmon, 10 Cal. 49. p. 35.
Nelson v. People, 13 N. Y. 293. p. 47.
Newall V. Nicbols, 12 Hun, 604. p.

241.
Newby V. Eeed, Park on Ins. 85. p.

227.
Newcomb v. Presbury, 8 Mete. 406.

p. 890.
Newell V. Nicbols, 75 N. Y. 78. p.

243.

Xew Havon Co. Bk. v. Mitchell, 15

Conn. 20;;. p. 09.
Newman v. Jenkins, 10 Pick. 515. p.

231.
Newman v. Newman, 1 Stark. 101.

p. 342.
Newman v. Studlejs 5 Mo. 291. p.

403.
New Orleans, etc., E. Co. v. Jones, 68

Ala. 48. p. 405.
Newsom v. Davis, 20 Tes. 425. p.

69.
Newton v. Caberry, 5 Cranch C. C

632. p. 304.
Newton v. Cocke, 10 Ark. 169. p.

379.
Niantic Bank v. Dennis, 37 111. 381.

p. 57.
Nickerson v. Einger, 76 N. Y. 279.

p. 77.
Nichol V. Crittenden, 65 Ga. 497.

pp. 120, 262.
Nicholas v. Lansdale, Litt. Sel. Cas.

21. p. 256.
Nichols V. Alsop, 10 Conn. 263. p.

98.
Nicols V. Scott, 12 Yt. 47. p. 351.
Nichols V. Woodruff, 8 Blackf. 439.

p. 35.
Nichols V. McCall, 13 La. Ann. 215.

p. 54.
Nixon V. Palmer, 10 Barb. 175. p.

173.
Nolley V. Callaway County Ct., 11 Mo.

447. p. 54.
Norden's Case, Post. 129. p. 544.
Norris v. Harris, 15 Cal. 226. p.

3G6.
Norris, Ee, 1 Sw. & Tr. 6. p. 232.
Northrup v. Trask, 39 Wis. 515. p.

69.
North Eiver Meadow Co. v. Slirews-

bury Church, 22 N.J. L. 427. p.

382.
Nosier V. Haynes, 2 Ncv. 53. p. 36.
Noxon V. De Wolf, 10 Gray, 343. p.

78.
Nutting V. Herbert, 37 N. H. 350. p.

84.

TABLE OF CASES CITED.

Ixvii

0.
Oaks V. Harrison, 24 Town, 1 70. p. 93.
01)art V. Letson, 17 N. J. (L.) 78. p.

SH.
O'Brien v. Henry, 6 Ala. 787. p. 419.
O'Brien v. Norris, V> 2>[d. 122. p. 00.
O'Connell v. People, 87 N. Y. 380-

p. -IJO.
O'Gara v. Eisenlohr, 38 N. Y. 29G.

pp. 102, 550.
Ogilen V. Saunders, 12 "Wheat. 213.

p. 503.
O'ilara v. Blood, 27 La. Ann. 57. p.

54.
Oiler V. Gard, 23 Ind. 212. p. 5.
Olden V. Hubbard, 34 N. J. (Eq.) 85.

p. 308.
Oldliam V. Wolley, 8 B. *fc C. 22. p.

107.
Oldnall V. Deakin, 3 C. & P. 404. p.

107.
Ogletrco V. State, 28 Ala. 003. p.

447.
Oliver V. State, 17 Ala. 5S7. p.

473.
O'Xeil V. N. Y., etc., Mining Co., 3

Nev. 111. p, 105.
Onesti V. Freeloii, 01 Cal. 02-5. p. 34.
Ononinney v. Slillwell, 23 Beav. 328.

p. 200.
Oppeuheim v. Do "Wolf, 3 Sandf. Cb.

571. p. 224.
Ortwein v. Com., 70 Pa. St. 423. p.

450.
Orvis V. Newall, 17 Conn. 97. p. 00.
Osborn v. Allen, 26 N. J. (L.) 383.

p. 215.
Osborn v. U. S. Bank, 9 Wheat. 738.

p. 50.
Oswald V. Leigh, 1 T. R.270. p. 308.
Outlaw V. Davis, 27 111. 407. p. 34.
Ovcrliill's Trusts, 17 Jur. 342. p. 30o.
Ovorstreet v. State, 46 Ala. SO. p.

403.
Owen V. Boyle, 15 Me. 147; 32 Am.
, Dec. 143. pp. 300, 370.
Owen V. Flack, 2 Sim. & Stu. GOG.

p. 145.
Owen f. State, 25 Ind. 371. p. 34.

P.

Padgett o. Lawrence, 10 Paige, 170.

p. 577.
Pago V. Dennison, 1 Grant's Cas. 370.

p. 108.
Pago V. Findley, 6 Tex. 301. p. 170.
Page y. Stephens, 23 Mich. 357. p.

122.
Paine v. Dwinal, 53 Me. 53. pp. G54,

355.
Paine v. Erlsell, 10 Pa. St. 178. p.

386.
Paine v. Noelke, 43 N. Y. (S. C.) 170.

p. 358.
Paine v. Tutwiler, 27 Gratt. 440. p.

55.
Palmer©. Baling, 8 Cal. 385 p. 53.
Palmer V. Oakley, 2 Doug. (Mich ) ;

47 Am. Dec. 1. pp. 27, 20.
Palmyra r. Martin, 26 Mo. 503. p.

13.
Paimell v. Com., 86 Pa. St. 268. p.

459.
Park V. Harrison, 8 Humph. 413. p.

4-0.
Parker v. Altschul, GO Cal. 3S0. p.

34.
Parker v. Boston, etc., E. Co., 3 Cush.

107 ; 50 Am. Dec. 700. p. 34.
Parker v. Foote, 19 "Wend. 309. p.

405.
Parker v. Kane, 4 "Wis. 1. p. 160.
Parkin v. Moore, 7 C. & P. 408. p.

79.
Parks V. Kichardson, 4 B. Mon. 276.

p. 124.
Parnell v. Haahn, 61 Cal. 131. p.

34.
Partenheiner v. "Van Order, 20 Barb.

470. p. 140.
Parsons v. Lloyd, 3 Wils. 341. p.

34.
Patch's Case, London, 1803. p.

500.
Patce I'. Pelton, 43 "V"t. 182. pp. 98,

440.
Paton V. Coit, 5 Mich, 505. p. 77.
Patrick v. llallet, 1 Johns. 246. p.

102.

Ixviii

TABLE OF CASES CITED.

Patterson y. Black, Park on las. 919

p. '224.
Patterson v. Gaines, 6 How. 550. p

108.
Patterson v. McCausland, 3 Bland Ch

90. pp. 302, 555.
Patterson v. State, 21 Ala. 571. pp

419, 585.
Pattie V. ■^Vilson, 25 Kas. 326. p

308.
Pattisonv. Prior, 18 Ind. 440. p. 7
Patton V. Ast, 7 S. & K. 116. p

344.
Pausch V. Guerrarad, 67 Ga. 319. p

54.
Paxton V. Boyce, 1 Tox. 317. p

93.
Paxton V. Rucker, 15 W. Va. 547,

p. 36.
Payne v. Long, 19 Ves. 571. p. 303
Peacock v. Bell, 1 Sauad. 74. pp

28, 29.
Pearce v. "Whale, 5 B. & C. 38. p

49.
Peaslee v. Robbins 3 Mete. 164. p

70.
Peaveyu. Tilton, 18 N. H. 151 ; 45

Am. Dec. 3G5. p. 303.
Peck, Ee, 29 L. J. (P. & M.) 95. p

201.
Pell V. Ball, 1 Cheeves (Eq.) S. C

99. pp. 246, 247.
Polton V. Palmer, 13 Ohio, 209. p

27.
Pendrell v. Pendrell, 2 Strange, 925

pp. 110, 118.
Penn v. Edwards, 50 Ala. 63. p

347.
Penn v. Myers, Add. 320. p. 518.
Pennefather v. Pennefather, Irish

Pvcp.6 Eq.l71. p. 192.
Pennington v. Yell, 11 Ark. 236. p.

569.
Pennsylvania R, Co. v. Brooks, 7 P. P.

Smith, 339. p. 573.
Penobscot Boon Co. v. Lamson, 16

Me. 224. p. 50.
Pcnwarden v. Ching, 1 Moody & Mai.

400. p. 427.

People V. Ah Choy, 1 Idaho, 317. p

537.
People V. Ak Ki, 20 Cal. 172. p. 518,
Peoples. Antonio p. 518.
People V. Barnes, 48 Cal. 551. p

483.
People V. Bodine, 1 Den. (N. T.) 281

p. 445.
People V. Bowen, 49 Cal. 654. p. 483
People V. Breen, 4 Park. C. C. 380

p. 499.
People V. Calder, 30 Mich. 85. p

106.
People V. Carrillo, 54 Cal. 03. p

5G3.
People V. Chambers, 118 Cal."_382. p

518.
People V. Coffman, 24 Cal. 233. p

459.
People V. Cole, 84 El. 327. p. 29.
People V. Cook, 8 N. Y. 6. p. 47.
People V. Corbin, 56 N. Y. 363. p,

483.
People V. Darr, 61 Cal. 538. p. 38.
People V. Davis, 1 Wheeler, 230. p.

279.
People V. Dyle, 21 N. Y. 578. p. 551.
People V. Pinney, 38 Mich. 482. p,

459.
People V. Feilen, 58 Cal. 218. p. 583,
People V. Fuqua, 01 Cal. 377. p. 34,
People V. Garbutt, 17 Mich. 9. p,

459.
People V. Garcia, 25 Cal. 531. p. 37,
People V. Gardner, 2 Wheel. 23. p,

541.
People V. Gray, 72 El. 343. p. 35.
People V. Green, 1 Park. C. C. 32.

p. 498.
People V. Grunzig, 2 Edm. Sel. Cas.

236. p. 498.
People V. Hall, 57 Cal. 569. p. 38.
People V. Ilendrickson, 1 Park. C. C'

422. pp. 4m, 499.
People V. Hessing, 28 111. 410. pp.

35. 509.
People V. How, 2 Wheel. Cr. Cas.

223. pp. 409, 511, 512.
People V. Hurley, 00 Cal. 76. p. 518.

TABLE OF CASES CITED.

Ixix

People V. Johnson, 01 Cul. 142. p.

44J.
People V. Kelser,3 Wheel. Cr. Cas. 40.

p. 498.
People V. Lambert, 5 Mich. 35G. p.

870.
People V. Lock Wing, 61 Cal. 3S1.

p. 537.
People ». Manhattan Co. 9 Wend,

551. p. 170.
People V. March, 6 Cal. 543. pp. 170

200, 409.
People V. Marion, 29 Mich. 31. p

143.
People V. Mellon, 40 Cal. 648. p. 88
People V. Messersmith, 57 Cal. 575

p. 459.
People V. McDowell, 47 Cal. 131. p

459.
People V. McLeod, 1 Hill, 407. p,

170.
People V. McWhorter, 4 Barb. 438. p

551.
People V. Orcutt, 1 Park. C. C. 252

pp. 204, 408.
People ». Peverelly, Burr. Ev. 347. p

609.
People V. Phojnis Bk., 4 Bosw. 804

p. 55.
Pcviple V. Pitcher, 15 Mich. 397. p

538.
People V. Preston, 1 Wheel. 41. p

518.
People V. Rathbun, 21 Wend. 509. pp

538, 539.
Peoplo V. Robinson, 1 Park. C. C. 649

p. 493
Peoplo t). Sing Linn, 01 Cal. 538. p

89.
Peoplo V. Smith, 59 Cal. 305. p. 53
People V. Smith, 57 Cal 130. pp

179, 459.
People V. Snyder, 41 N. Y. 307. pp

65, 84.
People V. Squires, 49 Mich. 487. p

170.
People ». Stanley, 47 Cal. 117. p. 537
Peop'o V. Stout, 4 PaTk. 71. p. 500.
People V. Strong, 40 Cal. 302. p. 538,

People V. Stuart, 4 Cal. 218. p. 35
Peoplo V. Thayer, 1 Park. C. C. 595,

p. 433.
People V. Townsend, 3 Hill, 481. pp

281, 292.
People V. Tvler, 30 Cal. 622. p. 552.
People V. Walden, 51 Cal. 5t8. p

603.
Peoplo V. Wilson, 40 Cal. 14. p. 459
People V. Wilson, 30 Mich. 480. p,

518.
People V. Wang Ah Ngow, 54 Cal

151. p. 537.
People V. Wood, 3 Park. 681. p. 495
People V. Woodside, 72 111. 407. p

88.
People V. Wreden, 12 Ky. 682. p. 459.
Perkins v. Nugent, 45 Mich. 150. p,

54.
Perkins v. Prout, 47 N. H. 389. p

77.
Perkins v. Scott, 57 N. H. 55. p. 568
Porrlii V. Keaii, 19 Me. 355. p. 354.
Perrin v. Noyes, 39 Mc. 384. p. 77.
Perry County v. R. Co., 05 Ala. 391.

p. 53.
Peter v. Beverly, 10 Pet. 532. pp.

351, 355.
Petorkin v. Inloes, 4 Md. 175. pp.

197, 239.
Pettis V. Westlake, 3 Scam. 535. p.

78.
Pful V. Vanbatenberg, 2 Camp. 439.

p. 348.
Phelps V. Conant, SO Vt. 277. p. 183
Phelps V. Cutler, 4 Gray, 1 37. p. 420
Phelps V. Hartwell, 1 Mass. 71. p.

280.
Phelps V. Ratcliffe, 3 Bush, 331. p.

54.
Phcne's Trusts, Re, L. R. 5 Ch. App.

139. p. 201.
Philadelphia City Pass. R. Co. v.

Iler.rice, 92 Pa. St. 431. p. 570.
Phillips V. Allen, 2 Allen, 453. pp.

108, 113,118.
Phillips V. Evans, 64 Mo. 17. p. 248.
Phillips V. !RIiirrison, 3 Bibb, 105; G

Am. Dec. 638. p. 321.

l:i.x

TABLE OF CASES CITED.

Phillipscn v. Hayter, L. E. 6 C. P.

88. p. 280.
Pickering v. Pickering, 6 N. H. 124.

p. 280.
Pickering v. Stamford, 2 Yes. jr. 583'

p. 309.
Pickett V. Pfickham, L. R. 4 Ch. App.

190. p. 1C3.
Picquet v. Swan, 5 Mason, 40. p.

45.
Piel V. Brayer, 20 Ind. 332. p. 58.
Pierce v. Cloud, G Wright, 102. p.

407.
Pierce v. Edington, 88 Ark. 150. p.

38.
Pierce v. State, 53 Ga. 365. p. 179.
Pierpont v. Fowle, 2 Woodb. & M.

23. pp. 18, 74.
Pierre v. Fernald, 2G Me. 436. pp.

405,411.
Pierson v. People, 18 Hun. 239. p.

498.
Pike V. Hayes, 14 N. H. 19. p. 279.
Pillow V. Roberts, 13 How. 472. p.

5G3.
Piper V. Wade, 57 Ga. 223. p. 353.
Pipes V. Hurdesty, 19 La. Ann. 152.

p. 381.
Pitcher v. Patrick, 1 St. & P. 478.

p. 349.
Pitney v. Leonard, 1 Paige Ch. 461.

p. 419.
Pittsburg V. O'Neil, 1 Penn. St. 343.

pp. 17, 73.
Pittsburg V. Walter, 69 Pa. St. 365.

p. 55.
Pizzarro, The, 2 Wheat. 241. p. 151.
Piatt V. Stewart, 10 Mich. 2(;0. p. GO.
Plimpton V. Somerset, 33 Vt. 283. p.

567.
Plowes V. Bossey, 31 L. J. (Ch.) GSO.

pp. 114, 118.
Plummer v. Com, 1 Bush, 76. pp.

537, 539.
Poe V. Darrah, 20 Ala. 289. p. 164.
Polk V. State, 19 Ind. 170. p. 4:9.
Polly, The, 2 Eob. Adm. 361. p. 151.
Pomeroy v. Ainsworth, 22 Barb. 118,

p. 372.

Pomeroy ;;. Benton, 77 Ivlo. 64, p.

148.
Pomeroy v. Rice, 16 Pick. 22. p. 354,
Pool V. Morris, 29 Ga, 395, p. 276,
Poolcy V. Goodwin, 4 Ad, & Eil. 94.

p. 82.
Poorman v. Mills, 35 Cal. 118. p. 78
Pope V. Dodson, 58 111. 360. p. 344.
Pope V. Lynn, 50 Me. 83, p. 364,
Pordage v. Cole, 1 Sandf. 319, p,

538.
Porter v. Campbell, 58 Tenn, 81. p.

179.
Porter v. Parker, 8 Tex. 23. p. 55,
Porter v. State, 2 Ind, 435. p, 537.
Post V. Post, 70 111, 484. pp. 93, 433
Potez V. Glossop, 2 Ex, 192, p, 89,
Potter V. Litcomb, 7 Me. 302. pp

357, 582.
Potts V. Coleman, 67 Ala. 221. p,

346,
Pounders v. State, 37 Ark, 399, p

34.
Powell V. Brinkley, Busb. (N. C.) 154,

p, 340.
Powell V. Knox, 16 Ala. 634. pp

191, 585.
Powell V. Sonnett, 3 Bing. 381. p

38.
Powell V. Swan, 5 Dana, 1. p. 349.
Powers V. Russell, 13 Pick, 69. p, 84,
Praiher v. Palmer, 4 Ark. 456. p,

172.
Pratt V. Lamson, 6 Allen, 457. p, 54
Prescottw. Union Ins. Co., 1 Whart,

(Pa.) 399; 30 Am. Dec. 206. p

102,
Preston v. Leighton, 6 Md. 88. p,

142.
Prevost V. Gratz, 6 Wheat, 481. pp,

99, 321, 441.
Provost V. Gratz, Pet. C. C. 361, p

386.
Price V. Com., 21 Gratt. 146. pp

518,524.
Price V. Gover, 40 Md. 102, pp. 99,

440.
Price V. Powell, 3 N. T. 822. p.

420.

TABLE OF CASES CITED.

Ixxi

Price V. Tallman, 1 N. J, (L.) 417.

p. lo7.
Primin v. Stewart, 7 Tex. 183. p.

200.
Priiitiip V. Johnson, 19 Ga. 75. p.

84.
Printiip V. Mitchell, 17 Ga. 5G4. p.

38;].
Prior V. State, 6 Tex. (App.) 489. p.

55.
Proctor V. McCall, 2 Bailey (S. C).

134 ; 23 Am. Dec. 134. p. 200.
Procurator-Gen. v. Colviu, 1 Uagg.

Ecc.92. p. 2n.
Proprietors v. Bullard, 2 Mete. 303.

p. 403.
Prudential Insurance Co. v. Edmonds*

2App. Cas. 4S7. p. 216.
Puckelt V. State, 1 Sneed, 356. p.

200.
Piillcn V. Hutchinson, 25 Me. 242. p.

89.
Pullen V. Shaw, 3 Dev. 238. p. 394.
Pursley v. Uays, 17 Iowa, 310. p. 36.
Puryear v. Rose, 6 Cold. 21. p. 179.
Putnam v. Clark, 27 N. J. (Eq.) 412.

p. 381.

Q.

Queen v. Evans, 2 Cox C. C. 270. pp.

523, 525.
Queen t;. Mayor Tewkesbury, L. R. 3

Q. C. GJ9. pp. 7, 4:.4.
Queen v. Smith, 1 Cox C. C. 260. p.

279.
Quincbaug Bk. i>. Brewster, 30 Conn.

559. pp. 270.,

R.

R. V. , 2 C. & P. 459. p. 525.

R. V. Adams, 3 C. & P. 600. p. 525.
R. -w. Alh'rton, I Ld. Ray, 122. pp.

109, 110.
R. V. Appleby, 3 Stark. 33. p. 549.
R. V. Archer, 1 Moody, 145. pp. 279,

288, 294.
R. V. Atkinson, 1 Cr. & Dix. 161. p.

525.
R. V. Bailey, 7 C. & P. 264. p. 260.

R. V. Barber, 4 Cox C. C. 272. p. 294.
R. V. Barbot, 18 How. St. Tr. 1261.

p. 509.
R. V. Bishop, 2 London Leg. Obs. 39.

p. 495.
R. V. Blandy, 18 How. St. Tr. 1118.

p. 490, 499.
R. V. Cloomsbury, 4 El. & B. 520. p.

29.
R. V. Bowen, 13 Q. B. 790, p. 35.
R. V. Budd, 5 Esp. 2S0 p. 175.
R. V. Buncombe, 1 Cox C. C. 183. p.

289.
R. V. Burdett, 4 B. & Aid. 161. p. 556.
R. V. Burdock, Best on Pres., sect. 196.

p. 496.
R. V. Carlisle, 2 B. & Ad. 307. p. 35.
R. V. Carpenter, 2 Show. 47. p. 427.
R. V. Cleves, 4 Car. & P. 221. pp.

489, 505.

R. V, Cole, 1 Phil. Ev. 508. p. 483.
R. V. Connollj', 2 Lewin, 229. pp.

279, 288.
R. V. Cooper, 3 C. & K. 318. p. 525.
R. V. Cooper, 1 Q. B. D. 19. p. 487.
R. V. Corders, Phill. Tr. 221. p.

509.
R. V. Cotton, 12 Cox C. C. 400. p.

.490.
R. V. Crowhurst, 1 C. & K. 370. p.

522.
R. V. Cruise, 8 C. & P. 546. p. 275.
R. V. Cruise, 2 Moody C. C. 53 ;

p. 294.
R. V. Crutlenden, 6 Jur. 267. p. 525.
R. V. Dewhirst, 2 Stark. Ev. 449. p.

525.
R. V. Donellan, Phil. Tr. 126. pp.

530, 541.
R. V. Donnall, Wills' Circ. Ev. 1S8,

p. 541.
R. V. Dorsett, 2 C. & K. 306. pp.

490, 508.

Rox V. Eldershaw, 14 Eng. Com. Law,

336. p. 286.
R. r. Fanning, R. & R. 207. pp. 262,

467.
R. V. Francis, L. K 2 C. C. R. 125.

p. 487.

Ixxii

TABLE OF CASES CITED.

R. V. Ganier, 3 Fost. & F. 681. p.

490.
E. V. Gearing, 18 L. J., M. C. 215 ;

pp. 490, 508.
E. V. Gauche, 2 Salk.441. p. 28.
R V. Gray, 4 Fost. & F. 1102; p.

489, 508.
E. V. Green, 7 How. St. Tr. 159. p.

543.
E. V. Harrison, 12 How. St. Tr. 833.

pp. 496, 512.
E. V. Hay, 1 W. Black. G46. p. 241.
E. V. Heath, Wills' Ev. 98. p. 515.
E. V. Hewlett, 2 Euss. on Or. 728. p.

525.
E. V. Hill, 2 Moody, 30. pp. 264, 467.
R. V. Hill, 20 How. St. Tr. 1317, p.

509.
R. 7). Howard, 1 Moo. & Rob. 187. v.

50.
R. V. Hughes, 2 Lewin, 230. pp.

288, 294.
R. V. Haling, 1 Strange, 7. p. 28.
E. V. Inhabitants of Mansfield, 1 Q.

B. 444. pp. 113, 115.
R. V. Jones, 2 Camp. 181. p. 47.
E. V. Knight, 3 C. & P. 116. pp. 279,

290.
E. V. Long Buckly, 7 East, 45. pp.

35, 427.
R. V. Luff, 8 East, 198. p. 108.
R. V. Mainwaring, 1 Dears. & B.

132. p. 437.
R. V. Matthews, 1 Den. C. C. 549. p.

279.
R. V. Mazagora, R. & R. 291. pp. 264,

468.
R. V. [MonkhousG, 4 Cox, 55. p. 274.
R. V. Slurray, 1 Sulk. 122. p. 109.
R. V. Nairn, 19 How. St. Tr. 1296.

p. 498.
R. V. Nash, 2 Den. C. C. 498. pp.

264, 467.
R. V. Norkutt, 14 How. St. Tr. 1324.

p. 543.
R. V. Ogilvie, 19 How. St. Tr. 1290.

pp. 511, 512, 534.
R. V. Owen, 4 C. «S5 P. 230. p. 279,

283.

E. V. Owens, 2 E. & E. 86. p. 90.
E. V. Partridge, 7 C. & P. 551. p.

525.
E. V. Patch, Wills' Circ. Ev. 230 p.

496.
E. V. Pease, 3 B. & Aid. 579. p. 260.
R. V. Phillips, 34 Eng. Com. Law,

763. p. 286.
E.«.Price,8C.&P.19. pp. 279, 294.
E. V. Eees, 6 C. & P. 606. p. 50.
E. V. Richardson, Burr. Cir. Ev. 243.

p. 505.
E. V. Eichardson, 2 Fost. & F. 343 ;

p. 489.
E. V. Eodcn, 12 Cos C. C. 630. p.

490.
R. V. Rogers, 2 Camp. 654. p. 461.
R. V. Rush, Burr. Ev. 4:^5. p. 542.
R. V. Sheppard, E. & E. 160. pp.

264, 467.
E. V. Smith, 1 Cox, 260. p. 281.
E. V. Smith, 2 C. & K. 203. p. 522.
E. V. Smith, 2 Dears. & B. 553. p.

287.
E. V. Smith, Ey. & M. 295. p. 518.
R. V. Smithers,"5 C. & P. 332, p. 545,
R. V. Squire, Burns. .Just. p. 290.
R. V. Stanfield, 11 How. St. Tr, 1402.

pp.406, 511,533.
R. V. Stapleton, 1 Cr. & D. 163. p.

288.
R. V. Stewart, 19 How. St. Tr. 156.

p. 534.
R. V. Stone, 1 East, 639. p. 465.
R. V. Taylor, 5 Cox C. C. 1 38. p. 490.
R. V. Thurtell, Pliill. Tr. 7. p 513.
R. V. Totness, 11 Q. B. 80, pp. 28, 29.
R, V. Verelst, 3 Camp. 432. p. 50.
E. V. Yoke, Russ. & Ey. 531. pp.

490, 508.
R. V. Waters, 1 Den. C. C. 356. p.

35.
R. V. Wellshire, 6 Q. B. Div. 366. p.

201.
R. V. Whiston, 4 Ad. & Ell. 607. p.

85.
E. V. Whitney, 5 Ad. & Ell. 191. p.

35.
R. V. Wright, 1 C & P. 116. p. 289.

TABLE OF CASES CITED.

Ixxiii

R. Co. V. Eamsay, 22 Wall. 322. p.

27.
Raujland v. Morton, 41 Ala. 344. p.

320.
Riiko V. neaton, 9 Wis. 838. p. 370.
Ramsay v. McCauley, 2 Tex. 190. p.

370.
Ramsey v. McCue, 21 Gratt. 349. p.

881.
Ramsbottom v. Buckhurst, 2 M. & S.

6G7. p. 35.
Rnndall v. Bowden, 48 Me. 37. p. 54.
R;mger v. Gary, 1 :Metc 369. p. 78.
Rangier v. Morton, 4 Watts, 265. p.

8-54.
Rankin v. Blackwell, 2 Johns. Gas.

198. p. 381.
Rawls V. Deans, 4 Ilawks, 299. p. 55.
Rawson v. Adams, 17 Johns. 130. p.

344.
Ray V. Pierce, 84 N. G. 485. p. 303,
Ray V. Rowley, 4Thomp., etc., 43; 1

Hun, 614. "p. 41.
Rayne v. Terrell, 33 La. Ann. 812. p.

54.
Eaynham v. Ganton, 3 Pick. 293. p.

360.
Read v. Robinson, 6 W. & S. 329. p.

303.
Rector v. Rector, 8 111. 120. p. 138.
Rector, etc., of Tnnity Clmrch w.Hig-

gins, 4 Robt. 1. p. 55.
Redington V. Woods, 45 Cal. 406. p.

70.
Redmond v. Anderson, 18 Ark. 449.

p. 29.
Reed V. Goodyear, 17 S. & R. 352. p.

400.
Reed V. Jackson, 1 East, 355. p. 35.
Rood V. Kemp, 16 111. 445. p. 381.
Reed y. Pliillips 5 111. 48. p. 35.
Reed V. Reed, 46 Pa. St. 239. pp. 328,

334.
Reod V. State, p. 35.
Reed v. Vaughan, 15 Mo. 141. p. 27.
Reedy v. Scott. 23 Wall. 352 , p. 34.
Reese v. Harris. 27 Ala. 801. p. 300.
Eee«e v. Miit. Ben. Ins. Co., 23 N. Y.

517. p. 359.

Reeves v. Brymer, G Vcs. jr. 511. p.

309.
Reeves v. Dougherty, 7 Yerg. 222. p.

93.
Reformed Protestant Dutch Church,

Atl'y Gen. v. 83 Barb. 303. p. 55.
Reid V. Jordan, 66 Pa. 282. p. 57.
Reid V. Reid, 11 Tex. 385. p. 55.
Remington v. Levitt, 8 B. Mon. 611.

p. 108,
Renfo V. Harrison, 10 Mo. 411. p.

304.
Renner v. Bk. of Columbia, 9 Wheat.

582. pp. 17, 73.
Respublica v. Bob, 4 Dall. 145. p.

612.
Revel V. State, 26 Ga. 275. p. 537.
Reynolds v. Fleming, 30 Kas. 106. p.

60.
Reynolds v. Nelson, 41 Miss. 83. p.

34.
Reynolds v. Pharr, 9 Ala. 500. p. 09.
Reynolds v. Reynolds, 1 Dick. 374. p.

303.
Rhodes v. Turner, 21 Ala. 210. pp.

320, 421, 424.
Rhodes v. Whitehead, 27 Tex. 304.

p. 403.
Rhone v. Gnle, 12 IMinn. 54. p. 163.
Ricord V. Williams, 7 Wheat. 109. p.

414.
Rice V. Cunningham, 29 Cal. 492. p.

40.
Rice V. Lumley, 10 Ohio St. 596. p.

200.
Richards v. Ayers, 1 W. & S, 485, p.

306.
Richards v. Elwell, 12 Wright, 61, p.

407.
Richards v. Kountze, 4 Neb. 209. p.

93.
Richards v. Richards, 15 East, 294.

p. 197.
Richardson v. Smith, 1 Allen, 541. p,

67.
Ricliardson's Estate, 13 Phila. 241, p,

805,
Richmond v. Aiken, 25 Yt. 524, p.

669.

Ixxiv

TABLE OF CASES CITED.

Eickctson v. Richardson, 26 Cal. 149.

p. 8:1.
Riilgeley v. Johnson, 11 Barb. 540. p.

396.
Eidgway, Re, 4 Redf. 226. p. 242.
Rieuibauer's Case, 3 Leg. Obs. 242.

pp. oOj, 516.
Eiggs V. Penn. E. Co., 16 Fed. Rep.

804. p. 148.
Eiggs V. State, 30 Miss. 636. pp. 26G,

409.
Eiggs V. Tayloe, 9 Wheat. 487. p.

159.
Eindskoff v. Barrett, 14 Iowa, 101.

pp. 17, 73.
Ring V. Luffe, 8 East, 207. p. 110.
Ringhouse v. Keever, 49 111. 470. p

197.
Ripley V. BabcocK, 13 "Wis. 425. p

179.
Either v. The Frolic, 1 Woods, 92. p,

353.
Eising Sun, The, 2 Rob. Adm. 104

p. 151.
Rist V. Hobson, 1 Sim. & Stu. 543

p. G7.
Ritter v. Schenck, 101 111. 387. pp

85, 347.
Rives V. Kumler, 27 111. 291. p. 54.
Rixford v. Miller, 49 Vt. 319. p. 172.
Eobbins V. Townsend, 20 Pick. 345.

p. 350.
Roberts v. Bethell, 12 C. B. 779. p.

67.
Roberts v. Brownrigg, 9 Ala. 106. p.

305.
Roberts v. Cook, 68 Ga. 325. p. 54.
Roberts v. People, 19 Mich. 401. pp.

271, 274, 473.
Eoberts v. Pillow, 1 Ilempst. 634. p.

82.
E(;berts v. Swearingen, 8 Neb. 3G3.

p. 419.
Eoberts v. Wilcoxson, 36 Ark. 364. p.

68.
Robeson v. Schuylkill Nav. Co., 3

Grant's Cas. 190. p. 355.
Eobiiioe V. Doe, 6 Black. 85. p.

420.

Robinson v. Allison, 36 Ala. 525. p,

344.
Robinson v. Cushraan, 2 Denio, 149

p. 75.
Robinson V. Dauchey, 3 Barb. 20. p

358.
Robinson v. Railroad, 7 Gray, 502. p

182.
Robinson v. Reynolds, 2 Q. B. 634. p

77.
Robinson v. Sallier, 2 Woods C. C.

187. p. 241.
Eochell V. Holmes, 2 Bay, 487. p,

403.
Rockwell V. Taylor, 41 Conn. 55 p,

344.
Roden u.Ryde, 4 Q. B. 626. pp. 2^3,

255.
Rodman v. Hoops, 1 Dall. 85. p. 308,
Roe V. Sup. Ct., 60 Cal. 93. p. 34
Rogers v. Bishop, 5 Blackf. 103 p,

815.

Rogers v. Hatch, 8 Nev. 35. p. 370
Rogers v. Morton, 12 Wend. 484. p,

77.
Eogers v. Park, 4 Humph. 480. p,

50.

Rogers V. Zook, 86 Ind. 237. p. 358,
Ronkendorff «. Taylor, 4 Pet, 349. p

49.
Rood V. N. Y., etc., E. Co., 18 Barb,

80. p. 69.
Rooker v. Perkins, 1 Wis. 79. p,

403.
Eose V. Clark, 8 Page, 573. pp. 93, 435
Rosenthal v. Mayhugh, 33 Ohio St

155. p. 200.
Eosenthal v. Eenick, 44 111. 202. pp.

34, 54.
Eoscnweig v. People, 63 Barb. 034.

p. 483.
Ross ^^ Clare, 3 Dana, 189. p. 405.
Ross V. Darby, 4 Munf. 428. p. 3ii2.
Ross V. Dunham, 35 Ala. 434. pp.

77, 79.
Ross V. Ellsworth, 49 Me. 416. p. 344.
R(.S3 V. Mizncr, 3 Blackf. 302. p. 3').
Ross V. Mcjunkin, 14 S. & 11. 364.

p. 322.

TABLE OF CASES CITED.

Ixxv

Pv.-,s=or V. Bunn, GG Ala. 80. p. 40').
llouiuii V. Bostwick, 59 Ala. 300. p.

C8.
Roulledge v. Carruthers, Nicholas

Adult. Bast. IGl. p. 100.
Rowua V. Lamb, 4 Gr. Greene, 468

pp. oG, 54.
llowo V. Haslanci, 1 W. Bl. 40i. p

201.
Rowland v. Windley, 86 N. C. SG

p. o'jG.
Riiboy r. Culbertson, 35 Iowa, 204

p. S47.
Eu.i,'.'ly V. Gill, 15 La. Ann. 500. p

20.
Riit,'gles V. Bucknor, 1 Paine, 358. p

55.
RiiL^les V. Lawson, 13 Johns. 285. p,

30].
RulotFw. People, 40 K Y. 213; 5

Lans. 2G1. pp. 197, 552.
Rung V. Shonenberger, 2 Watts, 23 ;

26 Am. Dec. 95. p. 415.
Euiinion v. Crane, 4 Blackf. 450. p.

3S1.
Rush V. Megee, 36 Ind. 69. p. 179.
RussoU V. Baptist Theol. Union, 73

111. 307. p. 03.
Russell V. Beebe, Hempst. 704. p. 55.
Russell V. Hallett, 23 Kus. 276. p. 243.
Russell V. Marks, 3 Mete. (Ky.) 37.

p. 87.
Rust V. Baker, 8 Sim. 443, p. 200.
Rustird V. Gates, 4 Duna. 430. p. 427.
Ryan v. Sams, 12 Q. B. 400. p. 175.
Ryan, Ex parte, 44 Cal. 555. p. 400.
Ryder v. Hathaway, 21 Pick. 298.

pp. 149, 404.

S.

Sadler v. Anderson, 17 Tex. 248. pp.

55, 82, 370.
Sadler v. Langham, 34 Ala. 311. p.

58.
Sadler r. Kennedy, 11 W. Ta. 187.

pp. 322, 323.
Sahuuler v. Lockwood, G6 Ind. 285.

p. 35.

Salter v. Applegate, 23 N. J. (L.)

115. p. 47.
Saltern v. Melhursh, Arab. 348. p.

152.
Sandilands, In re, L. Pw. 6 C. P. 411.

p. 83.
Sanford v. Sandford, 28 Conn. 6. p.

34.
San~ara v. Ramsaj', 2 Vcrn. 561. p.

145.
Satterthwaite v. Powell,- 1 Curt. 705.

p. 242.
Saum V. Jones Co., 1 G. Greene, 165.

p. 36.
Saunders v. Gilmer, 8 Tex. 295. p.

55.'
Saunders v. Spingsteiu, 4 "Wend. 429.

p. 164.
Savage v. O'Neil, 42 Barb. 374. p.

366.
Savage v. O'Neil, 44 N. Y. 208. p.

366.
Savier v. Chipman, 1 Mich. 116. pp.

94, 436.
Saxon V. Whitaker, 30 Ala. 237. p.

179.
Sayles v. Olrastead, 66 Barb. 590. p.

351.
Sayro v.- Reynolds, 5. N., J. L. 737.

p. 394.
Sayres v. Com., SS Pa. St. 301. p.

459.
Scales V. Key, 11 Ad. & Ell. 819. p.

107.
Scammon v. Scammon, 28 N. n. 419.

p. 55.
Schcel V. Eidman, 77 111. 304. p.

197.
Schemmelpeuich v. Bayard, 4 Pet.

264. p. 354.
Schermerhorn v. Talman, 14 N. Y.

93. p. 56.
Schnell v. Toomer, 56 Ga. 108. p.

13.5.
Scholes V. Hitton, 10 M. & W. 15.

pp. 102, 276.
Scholey r. Walsky, Peake, 25. p. 348.
SLhoncmanr. Fegley, 14 Pa. St. G7G.

p. 184.

Ixxvi

TABLE OF CASES CITED.

Schulter v. Merchants' MuL Ins, Co.,

C2 Mo. 239. p. 439.
Scliurman v. Marley, 29 Ind. 459.

p. 358.
Bcott V. Coxe, 20 Ala. 294. p. 182.
Scott V. AVhite, 71 111. 287. p. 35.
Scott V. Williamson, 24 Me. 843. p.

77.
Scott, In Ee, 1 Redf. (N. Y.) — . p.

74.
Scovill V. Baldwin, 27 Conn. 817. pp.

23, 135.
Scruggs V. Bobb, 33 Ala. 481. p. 345.
Scutton V. Patullo, L. R. 19 Eq. 375.

p. 241.
Seaborn v. Henry, 30 Ark. 469. p.

858.
Searlo v. Barrington, Str. 813. p.

314.
Sears v. Dixon, 33 Cal. 326. p. 35.
Seeds v. Kahler, 76 Pa. St. 263. p.

60.
Seechrist v. Baskin, 7 "W. & S. 403 ;

42 Am. Dec. 424. p. 34.
Seogie v. Thomas, 3 Blatchf, 111. p.

34.
Seibright v. State, 2 W. Va. 591. p.

465.
Selleck v. 'Booth, 1 Law. & Call. C.

0. 117. p. 241.
Sellickjj. Starr, 5 Vt. 255. p. 403.
Selma & R. Co. v. Lacy, 43 Ga. 461

p. 358.
Selwyn, Re, 3 Hagg. Ecc. 748. p

241.
Senser v. Bower, 1 Penn. 450. p

108.
Sever v. Russell, 4 Cash. 513 ; 50 Am

Dec. 811. p. 34.
Sewell V. Evans, 4 Q. B. 626. p,

253.
Sewell V. Smith, 54 Ga. 507. p.

804.
Seymour v. Sturgess, 26 N. Y. 135

p. 370.
Sharp V. Johnson, 22 Ark. 79. pp

448, 5S3.
Sharp V. Sharp, 35 Ala. 574. p,

859.

Shaeferi). Gates, 2 B. Mon. 453; 38

Am. Dec. 164. p. 34.
Shaffner v. Com., 72 Pa. St. 60. p.

483.
Shallcross v. Palmer, 15 Jur. 836.

p. 387.
Shands v. Howell, 28 Ga. 222. p.

35.
Shattuck V. People, 5 111. 478. p.

35.
Shearer v. State, 7 Blackf. 99. p.

465.
Sheehan v. Davis, 17 Ohio St. 571.

p. 86.
Shells V. West, 17 Cal. 324. p.

143.
Sheldon v. Clark, 1 Johns, 513. p.

405.
Sheldon v. Ferris, 45 Barb. 128. p.

235.
Sheldon v. Wright, 7 Barb. 39. p.

43.
Shelbyville Trustees v. Town of Shel-
by ville, 1 Mete. (Ky.) 54. p. 47.
Shepherd v. Com., 6 Binney, 283 p.

115.
Sherrill v. Hopkins, 1 Cow. 103. p.

5.
Shields v. Pringle, 2 Bibb, 387. pp.

333, 336, 342.
Shinkle v. First Nat. Bk., 22 Ohio St.

517. p. 344.
Shorey v. Hussey, 82 Me. 579. p.

54.
Shortwell v. Murray, 1 Johns. Ch.

512. p. 6.
Shouse V. Lawrence, 51 Ala. 500. p.

34.
Shove V. Wiley, 18 Pick. 558. pp.

185, 186.
Shropshire v. Glasscock, 4 Mo. 530,

p. 369.
Sins V. Badger, 6 N. H. 393. p. 54.
Sibbering v. Earl of Burcarras, 8 De

G. & Sm. 735. p. 72.
Sibley v. Fisher, 7 Ad. & El. 444. p.
388
Siehel v. Lambert, 15 C. B. (n. s.),

782. pp. 94, lOG, 435.

TABLE OF CASES CITED.

Ixxvii

Sldnpy V. iSidney, 8 P. Wins. 270.

pp.102, 117, 270.
Sid well V. AVortbington, 8 Dana, 74.

p. 34.
Simmons v. Ttudall, 1 Sim. (n. s.)

136. p. 387.
Simpson V. Davis, 119 Mass, 3G9. p.

399.
Simpson u. Dismore, 9 M. & "W. 47.

p. 250.
Simpson v. Stackhouse, 9 Pa. St. 186 ;

49 Am. Deo. 554. p. 300.
Simpson v. State, 4 Uumph. 450. p.

618.
Sim V. Aiightery, 4 Strob. Eq. 103.

pp. 421, 424.
Sims V. ytato, 68 Ga. 486. p. 35.
Simson v. Eckstein, 22 Cal. 580. p.

419.
Sinclair v. Baggaley, 4 M. «fc W. 312.

pp. 89, 90.
Sistermans v. Field, 9 Gray, 332. p.

77.
Slade V. Minor, 2 Cranch C. C. 139.

36.
Slater v. Henry, 5 Jones (N. C), 66-

p. 443.
Sleeper v. Van Middlesworth, 4 De-

nio,431. p. 181.
Slioer v. Bk. of Pittsburg, 16 How.

671. p. 43.
Sloan V. Wliitaker, 58 Ga. 319. p

304.
Slocum V. People, 90 111. 281. pp

451, 587.
Smiley v. Fries, 104 111. 416. p. 84,
Smith V. Battens, 1 Moo. & R, 341

p. 89.
Smith V. Brame, 16 Q. B. 244. p,

77.

Smitlrr. Clark, 12 Iowa 32. p. 185,
Smith V. Com., 1 Duv. (Ky.) 224. p

459,
Smith V. Croom, 7Fla. 147. pp. 246,

247.
Smith V. Gibbs, 44 N. H. 335. pp.

18, 74.
Smith V. Gould, 4 Moore P. C. 26,

p. 379.

Smith V. Hardy, 36 "Wis, 417. 163.
Smith V. Henderson, 9 M. & W. 818.

p. 251,
Smilh V. Hill, 22 Barb. G5G. p.

55.
Smith V. Jordan,"* 13 Min. 2G4. p.

83.
Smith V. Keating, 6 C. B. 130. p. 35.
Smith V. Knowlton, 11 N. U. 196.

pp. 200, 231.
Smith V. McGowan, 8 Barb. 406. p,

893.
Smith V. N. Y, Cent, R. Co., 43 Barb,

225. p. 166,
Smith V. Peterson, 63 Ind. 243. p,

360,
Smith V. Porter, 10 Gray, 66. p, 89.
Smith V. Smith, 4 Paige Ch. 432. p.

176,
Smith V. Smith, 5 N. J. (Eq.) 484-

p.' 215.
Smith V. Smith, 49 Ala. 15G. p. 213.
Smith V. Smith, 19 Gratt. 545. p.

370,
Smith V. Sprague, 4 Vt. 43. p. 34.
Smith V. State, 47 Ala. 545. p. 39.
Smith V. State, 53 Ala, 486, p. 39.
Smith V. State, 8 Tex. App. 38. p.

493.
Smith V. State, 58 Miss. 867, pp.

36, 537.
Smith V. Stewart, 5 Ind. 220. p. 54.
Smith V. U. S., 2 Wall. 232, p. 381.
Smith V. Williamson, 11 X. J. L.

313. p. 40.
Smith V. Whitaker, 23 111. 307. p.

372,
Smith V. Whiting, 12 Mass, 6, pp,

17, 73,
Smith, Re, 31 L. J. (P, & M.), 182.

p. 238.
Smilhpeter v. Ison, 4 Rich. Law, 203.

p. 427.
Smoot V. Baldwin, 1 Mart. (n. s.) 528.

p. 370,
Smyth V. Jeffries, 5 Price, 258, p.

465,
Smyth, Re, 28 L, J. (P. & M.) 1. p.

T29.

Ixxviii

TABLE OF CASES CITED.

Sncthen v. Memphis Ins. Co., 3 La.
Ann. 474; 48 Am. Dec. 4G2. p.
102.
Sneathers v. State, 46 Ind. 447. p.

518.
Snow V. Benton, 28 111. 305. p.

179.
Snyder v Com., 85 Pa. St. 519. p.

484.
Snyder v. Kiley, 6 Pa. St. 164; 47

Am. Dec. 452. p. 140.
Society for Propagation of Gospel v.

Young, 2 N. H. 510. pp. 55, 403.
Solomon's Lodge v. Montenotin, 58

Ga. 547. p. 01.
Somervail v. Gillies, 31 Wis. 152.

pp. 347, 351.
Somerville v. State, 6 Tex. App. 433.

p. 493.
South, etc., R. Co. V. Morrow, 65 Ala.

197. p. 58.
Sparhawk v. Bullard, 1 Mete. 95. p.

403.
Sparks v. Pvawls, 17 Ala. 211. p.

404.
Spawn V. Crummerford, 20 Tex. 210.

p. 370.
Spear v. Carter, 1 Mich. 19 ; 48 Am.

Dee. 6S8. p. 28.
Spears v. Burton, 31 Miss. 554. p.

200.
Spears v. State, 50 Ga. 252. .p. 35.
Speer v. Speer, 7 Ind. 178. 160.
Spellsburg v. Burdett, 10 CI. & F. 840.

p. 83.
Spencer v. Roper, 13 Ired, (L.) 333.

p. 201.
Sperry v. Spaulding, 45 Cal. 344.

p. 77.
Spiers v. Parker, 1 T. Pv. 141. pp.

35, 405.
Spieres v. Parker, 1 T. R. 144. p.

405.
Spooner's, l^Irs., Case, 2 Chand. Cr.

Tr. 34. pp. 512, 534.
Sprague v. Duel, 1 Clarke (N. Y.) 90.

p. 179.
Sprague v. Litherberry, 4 McLean,
412. pp. 34, 80, 302.

Sprigg V. Moale, 28 Md. 506. pp.

194, 197.
Spring Garden Mut. Ins. Co. v. Ev-
ans," 9 M(l. 1. p. 138.
Spurr V. Bartholomew, 2 Mete. 479.

pp. 55.
Spurr V. Trimble, 1 A. K. Marsh. 279.

p. 213.
Squier v. Stockton, 5 La. Ann. 120.

p. 420.
St. George v. St. Margaret's, 1 Salk.

123. p. 117.
St. Louis V. State, 8 Neb. 405. p.

498.
St. Louis, etc., R. Co. v. Murphy, 38

Ark. 456. p. 34.
St. Louis, etc., R. Co. v. Wheelis,

72 111.538. p. 85.
Stacey v. Graham, 3 Duer, 444. p.

420.
Stahl V. Berger, 10 S. & R. 171. p.

886.
Stall V. Fulton, 30 N.J. (L.) 4C0. p.

84.
Stall V. Meek, 70 Pa. St. 181. p. 280.
Standish v. Flowers, 16 Wis. 110. p.

55.
Stannard v. Smith, 40 Vt. 513. p.

55.
Staples V. Wellington, 58 Me. 453.

p. 179.
Starr v. Peck, 1 Hill, 270. p. 358.
State V. Adams, 1 Hayw. 463. pp.

518, 530.
State V. Alstead, 18 N. H. 59. p. 55.
State V. Antonio, 2 Const. 776. p.

513.
State V. Arnold, 18 Ired. L. 184. p.
- 466.

State V. Arthur, 23 la. 432. p. 537.
State V. Atkinson, 6 Jones, 65. p. 465.
State V. Atkinson, 24 Vt. 448. p. 433.
State V. Baber, 74 Mo. 292. p. 459.
State ' u. Bartlett, 43 N. H. 224. p.

459.
State V. Bartlett, 55 Me. 200. p. 552.
State V. Beackner, 8 Blackf. 246. p.

35.
State V. Bell, 29 Iowa, 316. p. 274.

TABLE OF CASES CITED.

Ixxix

State V. Bennett, 3 Brev. 514. p. 518.
Slato V. BtTtraiid, 3 Oregon, 61. pp.

200, 409.
State V. Boice, 1 Iloust. Cr. Cas. 355.

p. 458.
State V. noswcll, 63 Ala. 307. p. 459.
ytato V. Browsler, 7 Vt. V12. p. 518,
State ». Brown, 64 Mo. 307. pp. 449,

5S5.
State I'. Brown. 75 Mo. 317. pp. 30,

618.
State V. Brown, 12 Minn. 538. p. 36.
State V. Brown, 1 Iloust. Cr. Cas. 539.

p. 179.
State V. Bruin, 34 Mo. 537. pp. 479,

518.
State V. Bunker, 59 Me. 300. p. 405.
State V. Buriingamo, 15 Maine, 100.

p. 209.
State V. Butterfield, 75 Mo. 297. p.

518.
State V. Cameron, 40 Vt. 555. p. 552.
State V. Carter, 6 Ind. 37. p. 54.
State V. Cass.dy, 12 Kas. 559. p. 518.
State V. Cicely, 13 S. & M. 206. pp.

630, 533.
Stale V. Cleares, 59 Me. 300. pp. 546,

552.
State V. Cobb, 64 Ala. 157. p. 371.
Slate V. Coleman, 27 La. Ann. 091. p.

274.
State y. Collins, 3 Dev. 117. p. 551.
State V. Cowcll, 12 Nev. 337. p. 487.
Slate t). Crank, 75 Mo. 406. p. 518.
State V. Crawford, 11 Kan. 32. p.

459.
State V. Creson, 38 Mo. 372. p. 479.
State V. Cres3, 10 Iowa, 101. p. 54.
State V. Crockett, 82 N. C. 600. p.

54o.
State V. Crowell, 25 Me. 171. p. 465.
State V. Cruwley, 13 Ala. 172. p. 492,
State V. Cunningham, 28 Conn. 195.

p. 564.
State V. Danby, 1 Houst. (Del.) Cr.

Cas. 175. p. 458.
Stater, Draper, 1 Houst. Cr. Cas. 531.

p. 458.
State V. Edwards, 60 Mo. 490. p. 465.

State V. Edwards, 13 S. C. 30. p. 545.
State V. Erb, 74 Mo. 199. p. 459.
Slate V. Evans, 65 Mo. 574. p. 473.
State V. Evans, 5 Jones, 250. p. 401.
Slato V. Parish, 23 Miss. 483. pp. 29,

34.
State V. Folter, 32 la. 40. p. 459.
State V. Eloyd, 15 Mo. 854. p. 479.
Stater. Flye, 26 Me. 312. p. 445.
Stale V. Foster, 61 Mu. 549. pp. 271,

473.
State V. Foster, 23 N. H. 348. p. 20.
Slate V. Fugate, 27 Mo. 535. p. 4:;3.
State u. Gassert, 05 Mo. 352. p. 473.
Slato V. Gibson, 21 Ark. 110. pp. 34.

37.
State V. Gillis, 4 Dev. (L.) 007. p.

531.
State D. Gain, 9 Humph. (Tenn.) 175.

p. 439.
State V. Graves, 72 N. C. 382. p. 479,

518.
State V. Gray, 37 Mo. 463. pp. 479,

518. ,

Stale V. Green, 35 Conn. 203. p, 400.
Slate V. Hamilton, 55 Mo, 523. p.

548.
Slate V. Harden, US. C. 300. p. 55.
State V. Hatcher, 11 Rich, (L.) 525.

p. 55.
State V. Heaton, 77 N. C, 504, p, 205,

468.
State V.Herman, 13 Ired. (L.) 502.

p. 108.
State V. Hessenkamp, 17 Iowa, 25.

"p. 202.
State V. Hill, 2 Specrs, 150, p. 47.
State V. Hinchman, 27 Pa. St. 479.

p. 43.
State V. Hodge, 50 N. H. 510. p. 518.
State V. Holme, 54 Mo. 153. pp. 206,

409.
State V. Howard, 82 N. C. 627. p.

606.
State V. Huting, 21 Mo. 464. p. 459.
State V. Hurley, 54 Me. 562. p. 561.
State V. Johnson, 40 Conn. 136. p.

179.
State V. Jones, 50 N. H. 309. p. 459.

Ixxx

TABLE OF CASES CITED.

Stnte V. Koan, 10 N. H. 347. p. 106.
State V. Kompf, 20 Mo. 429. p. 439.
State V. Kolsoe, 70 JIo. 506. p. 252.
State V. Xiimian, 7 Eich. (L.) 497.

p. 525.
State V. Klinger, 43 Mo. 127. p. 459,
State V. Kiiapp, 45 N. II. 148. p. 543.
State V. Laiiion, 3 Hawks, 175. p.

55.
State V. Lane, 64 Mo. 319. p. 271,

473.
State V. Lapage, 57 N. H. 300. pp.

482, 483, 490.
State V. Lawrence, 57 Me. 574. p.

459, 552.
State V. Lawson, 14 Ark. 114. p. 50.
State V. Lewis, 22 N, J. (L.) 564. p.

27.
State V. Mallon, 75 Mo. 356. pp. 538,

539.
State V. Marler, 2 Ala. 43. p. 459.
State V. Marvin, 35 N. H. 22. p. 492
State V. Maxwell, 42 Iowa, 208. p

274,
State V. Merrick, 19 Me. 398. p. 518
State V. Millian, 3 Nev. 409. p. 516
State V. Miller, 7 Ired. 275. p. 461.
State V. ]Mitcbell, 64 Mo. 191. pp

271, 473.
State V. Moore, 11 Ired. (L.) 100. p

201.
State V. Moore, 61 Mo. 279. p. 248
State V. Morris, 84 N. C. 750. p. 500
State V. Jlorrison, 3 Nev. 299. pp

461, 465.
State V. Marier, 25 Conn. 40. p. 4S3
State V. Mulhall, 72 Mo. 522. p. 360
State V. McBride, 19 Mo. 239. p. 439,
State V. Ncagle, 65 We. 408. p. 487
State V. Nichols, 38 Ark. 550. p. 34
State V. O'Neal, 7 Ired. (L.) 251. p

651.
State V. Patterson, 2 Ired. (L.) 350

p. 176.
Stale V. Patza, 3 La. Ann. 512. p

489.
State V. Payne, 86 N. C. 309.
State V. People, 56 N. Y. 315. p

552.

State .V. Perkins, 24 N. J. (L.) 409.

p. 47.
State V. Pettaway, 3 Hawks, 623. pp.

116, 118.
State V. Phillips, 24 Mo. 485. p. 538
State V. Pike, 49 N. H. 399. p. 280.
State V. Pitts, 11 Iowa, 343. p. 36.
State V. Pratt, 1 Houst. (Del.) Cr.

Cas. 269. p. 458.
State V. Presnell, 12 Ired. (L.) 105

p. 262.
State V. Pugh, 7 Jones, 61. p. 287.
State V. Keaton, 15 N. H. 174. p.

483.
State V. Eedemier, 71 Mo. 173, p.

459.
State V. Eeed, 62 Mo. 130. pp. 512,

545.
State V. Bobbins, 65 Mo. 443. p. 479,
State V. Koberts, 52 N. H. 492. p. 49.
State V. Robinson, Burr, Ev. 462. pp.

533, 534.
State V. Robinson, Burr. Cir. Ev. 288.

p. 496.
State V. Romaine, 58 Iowa, 46. p.

108,
State V. Sam, 1 Winst. 300. p. 285.
State V. Sewell, 3 Jones (L.) 245. p.

179.
State V. Shaw, 4 Jones (L.), 446. p.

525.
State V. Sheelady, 8 Iowa, 477. p. 36.
State V. Shuford, 69 N. C. 487. p.

484.
State V. Simons, 17 N. H. 83. p. 551,
State V. Smith, 53 Mo. 207, p. 459.
State V. Smith, 2 Ired. (L.) 407, p.

518,
State V. Smith, 2 Strobh. 77. pp.

267, 469.
State V. Spencer, 31 N. J, (L,) 196.

pp. 179, 458,
State V. Stanley, 4 Nev, 71, p, 36.
State V. Steinmeyer, 64 Ind. 87. p.

35.
State V. Thomas, 1 Houst. Cr. Cas.

511. p. 458.
State V. Tibbets, 85 Me. 81. pp.445,

478.

TABLE OF CASES CITED.

Ixxxi

Stnte V. Trivals, 32 La. Ann. 108C ;

80 Am. Rep. 293. p. 274.
Stnto V. Turner, G5 N. C. 593, p.

518.
Stnto V. Turner, Wright (O.), 20. p.

473.
State V. Twitty, 2 Hawks, 441. p.

370.
State V. Upham, 38 Me. 361. p. 551.
State V. Vann, 82 N. C. 631. p. 179.
State V. Vittum, 9 N. H.*519; pp.

258, 577.
State V. Wallace, 9 N. H. 515. p. 492.
State V. Walters, 45 Iowa, 389. pp.

483, 487.
State V. Watkins, 9 Conn. 47. pp.

460, 489, 498, .500.
State V. Weaver, 57 Iowa, 732. p.

549.
State V. Welch, 73 Mo. 284. p. 454.
State V. Wells, 48 Iowa, 671. pp.

451, 587.
Stale V. West, 1 Houst. Cr. Cas. 382.

p. 490.
State V. Weston, 9 Conn. 527. p.

518.
State V. Whittier, 21 Me. 341. p.

465.
State I'. Wikoff, 15 Mo. 174. p. 518.
State V. Williams, 54 Mo. 170. pp.

479, 518, 538.
State V. Williams, 9 Ired. (L.) 140.

p. 518.
State V. W-illiaras, C5 N. C. 305. p.

20.3.
State V. Williamson, 57 Mo. 192. p.

40.
State V. Willner, 40 Wis. 304. p. 179.
Slate r. Wilson, 10 Ired. (L.) 131.

p. 108.
State V. Wolff, 15 Mo. 168. p. 479.
State V. Woodly, 2 Jones, 270. p.

461.
State V. Worthinghara, 23 Minn. 528.

p. 108.
State Auditor v. Jackson County, 65

Ala. 1 12 (1880). p. 53.
State Bk. v. Se^ell, 18 Ala. 61G. p.
173.

State Nat. Bk. v. Scofleld, 9 Neb. 499.

p. 36.
Stearns v. Stearns, 37 Vt. 678. p. 37.
Stebbing v. Spicer, 8 C. B. 827. p.

258.
Stfbbins r. Leowolf, 1 Cush. 137.

pp. 101, 276.
Stogall i;. Stegall, 2 Brock. 253. pp.

108, 115, 118.
Stevens v. Bruce, 21 Tick. 193. p. 73.
Stevens v. Lynch, 12 East, 38. p. 6.
Stevens v. Martin, 18 Pa. St. 101. p.

381.
Stevens w. Moss, 2 Cowp. 594. p. US,
Stevens v. McNamara, 36 Me. 17G.

p. 200.
Stevens v. People, 31 Ind. 485. p.

459.
Stevens v. TaflFt, 3 Gray, 487. p. 82.
Stevens v. West, 6 Jones (L.), 50. p.

259.
Stevens Hospital v. Dyas, 15 Ir. Eq-

(n. s.)405. p. 382.
Stevenson u. Hoy, 43 Pa. St. 191. p-

60.
Stevenson v. Martin, 11 Bush, 458.

p. 304.
Stewart r. Preston, 1 Fla. 10; 44 Am.

Dec. 621. p. 140.
Stewart's Case, 19 How. St. Tr. 179.

p. 499.
Stewart's Case, 2 C. Hall Rec. 187.

p. 541.
Stickworth, Re, 7 Nev. 223. p. 3G.
Stinckfield v. Emerion, 52 Me. 4G5.

pp. 197, 213.
Stindo V. Goodrich, 3 Redf. 87. p.

242,
Stockley v. Stockley, 1 V. & B. 23.

p. 6.
Stockton V. Johnson, 6 B. Mon. 408.

p. 322.
Stoddard v. Chapin. p. 567.
Stoddard v. Burton, 41 Iowa, 582. p,

70.
Stokes V. Macken, 62 Barb. 117. p.

176.
Stouvenel v. Stephens, 2 Daly, 323.
p. 222.

Ixxxii

TABLE OF CASES CITED.

Stodder v. Powell, 1 Slow. 1S7; p.

427.
Stokes V. Macken, 62 Barb. 149. p,

358.
Stokes V. State, 58 Miss. 677. p. 518.
Stono V. GcYser Min. Co., 52 Cal.

517. p. 5G3.
Stone V. State, 4 Hemp. 27. p. 48G.
Stoner v. Ellis, 6 lud. 159. pp. 394,

395.
Story V. State, 16 Fla. 564. p. 35.
Storrs V. Baker, 6 Johns. Ch. 1G6. p.

8.
Stout V. Levari, 3 Pa. St. 236, p. 333.
Strang, Ex parte, 21 Ohio St. 610. p.

47.
Strangwayes' Case, 5 Leg. Obs. 90.

pp. 493, 510.
Strickler v. Todd, 10 S. & R. 63 ; 13

Am. Dec. 649. p. 404.
Strimpler v. Koberts, 18 Pa. St. 299.

p. 412.
Strode v. Magowan, 2 Bush, 627. p.

107.
Strong V. Hirst, 61 Me. 9. p. 353.
Strong V. Strong, 1 Abb. Pr. (n. s.)

238. pp. 188, 579.
Btrother v. Lucas, 12 Pet. 410. p. 55
Stroud V. Casey, 27 Pa. St. 471. p

69.
Stubbs V. Houston, 33 Ala. 565. p

280.
Stubbs V. Leavitt, 30 Ala. 352. p. 56
Sullivan v. Goldman, 19 La. Ann. 12

p. 163.
Sullivan v. Kelly, 3 Allen, 148. p

118.
Sullivan v. People, 31 Mich. 1. p

549.
Sumner v. Cook, 15 Kas. 162. pp

34, 39.
Supervisors v. People, 25 111. 183. p

68.
Supervisors of Haughton Co. v. TXces,

34 Mich. 481. p. 54.
Supervisors of Livingston v. White,

80 Barb. 72. p. 55.
Sutphen V. Cuslnnan, 35 111. 187. pp.

102, 276, 347, 556.

Sutton V. Davenport, 27 L. J. (C. P.)

54! p. 147.
Sutton V. Johnson, 62 111. 209. p.

484.
Sutton V. Tatham, 10 Ad. & Ell. 27.

pp. 16, 73.
Swails V. State, 4 Ind. 517. p. 47.
Swain V. Chase, 12 Cal. 283. pp. 28,

29.
Swain v. Ettling, 32 Pa. St. 486. p.

351.
Swiiini^cott Mac. Co. v. "Walker, 22 N.

H. 457. p. 182.
Sweeting v. Pov/ler, 1 Stark. 106. p.

258.
Swift V. Swift, 46 Cal. 267. p. 68,
Sylvester v. State, 71 Ala. 25. p. 537.
Symington v. McLin, 4. Dev. & B.

'291. p. ISO.

T.

Taantje's Case, Phil. Circ. Ev. xxxviii.

p. 507.
Tabb V. Collier, 68 Ga. 641, p. 35.
Tkblo Mt. ]\lin. Co. v. AVallor's De-
feat Min. Co,, 4 Neb. 220. p. 177
Tag-art v. Muse, 60 Miss. 870. p

36.
Talbot V. Hodson, 7 Taunt. 251. p,

83.
Talcot V. Com, Ins. Co., 2 Johns. 129.

p. 102.

Tally V, Reynolds, 1 Ark. 99. p. 50,
Tam V. Shaw, 10 Ind. 469. p. 35.
Tanner v. Hughes, 53 Pa. St. 289. p,

560.
Tiilman v. Strader, 23 111. 493. p

3G9.
Tatum V. Catamore, 16 Q. B. 745. p,

382, 387.
Taylor v. Cook, 8 Price, 653. p. 54
Taylor v. Cresswell, 45 Md. 422. pp

179, 190, 580.
Taylor v. Crowninshield, 5 N. Y. Leg,

Obs. 209. p. 386
Taylor v. Diplock, 1 Phill. 261. p,

2n.

Taylor V. Dougherty, 1 W. & S. 327,
p. 407.

TABLE OF CASES CITED.

Ixxxiii

Taylor v. Dugger, GO Ala. 431. p.

808,
Taylor v. Moeely, G C. & P. 273. p.

387. r

Taylor v. Watkins, 2G Tex. 688. p.

403.
TLCuraseh Town Site Case, 3 Neb.

284. p. 54.
Tedder v. Stiles, IG Ga. 2. p. 140.
Temploton v. Morgan, 16 La. Ann.

438. p. 54.
Templcton v. People, 27 Mich. 501.

pp. 439. 498.
Tcrritt V. Woodruff, 19 Vt. 182. p.

370.
Terry v. Bleight, 3 T. B. Mon. 270;

16 Am. Dec. 101 (1820). p. 53.
Tharp v. Conn., 3 Mete. (Ky.) 411. p.

34.
Thatcher v. Dinsmore, 5 Mass. 299.

p. 354.
Thatcher v. Powell, 6 Wheat. 127.

p. 27.
Thiiyer v. Barney, 12 Min. 513. p,

83.
Thayer v. Marsh, 11 Hun, 501. p.

83.
Thayer v. Middlesex ^lutual Fire Ins.

Co., 10 Pick. 329. p. ICO.
Thayer u. Thayer, 101 Mass. 113. p.

492.
Todcmcier v. Aspinwall, 43 111. 401.

p. 54.
Thomas v. Beckman, 1 B. Mon. 34.

p. 370.
Thomas v. Hunnicutt, 54 Ga. 337. p.

342.
Thomas v. Newton, 2 C. & P. 606. p.

77.
Thomas v. Thomas, 2 Dr. & Sm. 298.

p. 201.
Thomas v. Visitors of Frederick Co.

School, 7 Gill & J. 385. p. 197.
Thompson v. Armstrong, 7 Ala. 256.

p. 77.
Thompson v. Carr, 5 N. 11. 510. p.

403.
Thompson v. Davitte, 59 Ga. 472. p.

120.

Thompson v. Konyon, 100 Mass. 103.

p. 564.
Thompson v. Ketcham, 8 Johns. 190.

p. 368,
Thompson v. Mashiter, 1 Bing. 283.

p. 880.
Thompson v. Morrow, 2 Cal. 99. p.

359.
Thompson v. People, 4 Neb. 528. p.

518.
Thompson v. Leach, 2 Salk. 618. p.

303.
Thompson v. Shannon, 9 Texas, 536.

p. 120.
Thompson v. State, 6 Neb. 102. p.

518.
Thompson v. Thompson, 9 Ind. 323.

p. 156.
Thorne v. San Francisco, 4 Cal. 169.

p. 303.
Thornton v. Appleton, 29 Me. 300.

p. 280.
Thornton v. Campton, 18 N. 11. 27.

p. 55.
Thorpe V. Corwin, 20 N. J. (L.) 311.

p. 327.
Throgmorton v. Walton, 2 Rolle, 461.

p. 196.
Thrower v. Wood, 50 Ga. 459. p.

304.
Thursb}' v. Myers, 57 Ga. 155. p. 59.
Thurston v. Percival, 1 Pick. 415. p,

359.
Tibballs v. Jacobs, 31 Conn. 428. p.

303.
Tibbs V. Allen, 27 lU. 119. p. 34.
Tilghman v. Fisher, 9 Watts, 441.

p. 308.
Tillic, The, 7 Ben. 382. p. 143.
Tillou V. Clinton Ins. Co., 7 Barb.

568. p. 390.
Tilly V. Tilly, 2 Bland Ch. 444. p.

200.
Timson v. Moulton, 3 Cush. 269. pp.

102, 277, 463,
Tindall's Trust, Re, 30 Beav, 151. p.

193,
Tiiikham v. Arnold, 3 Me. 120. p.

403.

Ixxxiv

TABLE OF CASES CITED.

Tisdale v. Conn. ISIut. Ins. Co., 26

Iowa, 170; 28 Id. 12. p. 233.
TijJiile V. Maxwell, 58 Ala. 40. p.

853.
Tiilow V. Titlow, 54 Pa. St. 216, p.

179.
Titus V. Kimbro, 8 Tex. 210. pp. 56,

4G4.
Tobin V. Shaw, 45 Me. 344. p. 159.
Todd V. Myers, 40 Cal. 355. pp. 94,

4.'] 6.
Toledo, etc., Ins. Co. v. Spears, 16

Ind, 52. pp. 17, 73.
Tolmie v. Thompson, 3 Cranch C. C.

123. p. 31.
Tomlin v. Howe, 1 Gilm. 8. p. 344
Tompert v. Lithgow, 1 Bush, 176. p

31.
Tompkins v. Mann, 6 111. (App.) 171

p. 35.
Topi is V. Baker, 2 Cox CI. 118. p

316.
Towne v. Bossier, 19 La. Ann. 162,

p. 39.
Townsend v. Downer, 32 Vt. 183

p. 403.
Towson V. Tickriell, 3 B. & Aid. 31

p. 303.
Trabue v. Sayre, 1 Bush, 131. p

186.
Trask v. White, 3 Brown Ch. 291. p

316.
Treat v. Treat, 35 Conn. 200. p. 304
Trego V. Lowrig, 8 Meb. 238. p. 68,
Trenoulet v. Ccnas, 6 Mart. (x. s.)

541 ; 17 Am. Dec. 195. p. 346.
Trenton Banking Co. v. Woodruff, 2

K J. (Eq.) 117. p. 349.
Trevor v. Trevor, 2 Myl. & K. 675.

p. 303.
Trimble v. Brichta, 10 La. Ann. 778.

p. 248.
Tripe v. Marcy, 39 N. H. 449. p. 316.
Troop V. Hatch, 3 Abb. Pr. 27. p.

372.
Trott V. Irish, 1 Allen, 49. pp. 101,

276.
Trotter v. Harris, 2 Young & Jervis,

285. p. 427.

Trotter v. St. Louis Public Schools,

6 Mo. 69. p 54.
True V. Sanborn, 27 N. H. 383. p.

182.
Trustees v. Hill, 12 Iowa, 402. p. 77,
Tryman v. Knowle, 13 C. B. 222. p

124.
Tucker v. Aiken, 7 N. H. 113. p. 49
Tucker v. Morrill, 1 Allen, 528. p,

77.
Tucker v. State, 57 Ga. 503. p. 518
Tunstall v. Parish of Madison, 30 La,

Ann. 471. p. 54.
Turbeville v. State, 42 Ind. 490. p,

518.
Turner v. Com., 86 Pa. St. 54. pp

488, 505.
Turner v. Waterson, 4 W. &. S. 171

p. 408.
Twemlow v. Oswin, 2 Camp. '85. p,

228.
Two Brothers, The, 1 Rob. Adm. 131

p. 151.
Tyler v. Wilkinson, p. 410.
Tyler Cotton Press Co. v. Chevelier,

56 Ga. 494. p. 35.
Tyner v. State, 5 Humph. 383. p.

"^534.

u.

Ulrich V. McCabe, 1 Hilt. 251. p.

103.
Underwood v. Hossack, 38 111. 208.

p. 84.
Underwood v. Wing, 4 De G., M. &

G. 633. pp. 242, 247.
Unger v. State, 42 Miss. 642. p. 518.
Union Bk. v. Middlebrook, 33 Conn.

100. p. 556.
Union Bk. v. Stone, 50 Me. 595. p.

186.
Union Canal Co. v. Lloyd, 4 W. & S.

?93. p. 347.
United States v. Bowen, 4 Cranch

C. C. 604. p. 274.
Ujiitod States v. Carberry, 2 Cranch

C. C. 358. p. 55.
United States v. De Coursey, 1 Pin-

ney (Wis.), 508. p. 163.

TABLE OF CASES CITED.

Ixxxv

United Stntes v. Douglass, 2 Blatcbf.

(U. S.) 207. p. 447.
Unilcd States v. Earhart, 4 Sawj-. 245.

p. 55.
United States v. Galacar, 1 Spraguo,

545. p. 4G1.
United States v. Haj-ward, 2 Gall.

(U. S.) 485. p. 4G5.
United Stiites v. Jcnnegan, 4 Cranch

C. C. 118. p. 300.
United States v, Lawrence, 4 Cranch

C. C. 514. p. 280.
United Slates v. McGlue, 1 Curt. 1.

p. 280.
United States v. McLean, 9 Pet.

(U. S.)G82. p. 4\0.
United States v. Noelke, 17 Blatcbf.

554. p. G9.
United States v. Pwandall, Deady, 543.

p. 543.
United States v. Rathbone, 2 Paine,

578. p. 507.
United States v. Ross, 92 U. S. 283.

pp. 509, 572.
United States v. "White, 5 Cranch

C. C. 73. p. 36.
University of Vermont v. Reynolds,

3 Vt. 234. pp. 410, 417.
Upham V. Haskins, 62 Cal. 250 (1882).

p. 53.

V.

Vail p. Foster, 4 N. T. 312. p. 354.
Viiil V. Vail, 4 N. Y. 812. p. 353.
Valentine v. Piper, 22 Pick. 85; 33

Am. Dec. 715. p. 403.
Vallett V. Parker, 6 Wend. 615. p. 77.
Van Aernam v. Van Aernani, 1 Barb.

Ch. 375. pp. 114, 118.
Van Biircn v. Cockburn, 14 Barb. 118.

pp. 396, 576.
Vance v. Com., 2 Va, Cas. 133. p.

179.
Vandcrcock v. Baker, 48 Iowa, 199.

p. 57.
Vandervcere v. Gaston, 25 N. J. L.

615. p. 40.
Vnndick v. VanBuren, 1 Caine's Rep.

84. p. 427.

Van Etten v. Jilson, 6 Cal. 19. p. 29.
Van Hook v. City of Selma, 70 Ala.

3'Jl. p. 58.
Vanhorn v, Dorrance, 2 Dall. 306.

p. 386.
Van Omeron v. Dowick, 2 Camp.

44. p. 54.
Varner v. Nobleboro, 2 Me. 121. p.

354.
Vather v. Zane, 6 Gratt. 246. p. 77.
Vaughn v. Raleigh, etc., R. Co., 03

N. C. 11. p. 185.
Vaughn V. Rhodes, 2 JlcCord, 227;

73 Am. Dec. 713. p. 115.
Vermicombe v. Butler, 3 Sw. & T.

5S0. p. 83.
Vilhirs V. Villars, 2 Atk. 71. p. 159.
Villars, Ex parte, L. R. 9 Ch. App.

443. p. 204.
Villo de Havre, The, 7 Ben. 328. p.

121.
Vernout v. "Welch, 2 A. K. Marsh, 12.

p. 344.
Vincent v. Eaves, 1 Mete. 247. pp.

40, 54.
Virgin v. Brubaker, 4 Nev. 31. p. 36.
Voorhecs v. U. S. Bunk, 10 Pet. 474.

pp. 30, 34.

w.

"Waddell v. Judson, 12 La. Ann. 14.

p. 54.
"Waddell v. Magee, 53 Miss. 687. p.

54.
VTadsworth, Re, 2 La. Ann. 9CG. pp.

39.
Wagers v. Dickey, 17 Ohio, 439. p

29.
"Wainwright, Re, 1 Sw. & Tr. 257. p.

242.
Wakeman v. !Marquand, 5 Mart. (x.

s.) 270. p. 370.
"Walker's Case, 1 Leigh, 574. p. 486.
Walker's Case, 6 City Hall Rcc. 137.

pp. 279, 281.
Walker v. Davis, 33 Me. 570. p. 78.
Walker v. Hauks. 27 Tex. 535. p. 403.
Walker V. Maxwell, 1 Mass. 103. p.

370.

Ixxxvi

TABLE OF CASES CITED.

Walker v. Ptntc, 49 Ala. 370. p. "0.
Walker v. Walker, 1 Mo. (App.') 404.

p. 173.
Wallace v. Agrj', 4 Mason, 33G. p.

S53, S51.
Wallace v. Bank, 1 Ala. 567. p. 77.
Wallace v. Cox, 71 111. 513. p. 27.
Wallace v. Harris, 32 Mich. 380. p.

120.
Wallace v. Hull, 28 Ga. 68. p. 69.
Wallbridge v. Ellsworth, 44 Cal. 353,

p. 35.
Walls V. Bailey, 49 N. T. 464. pp.

17, 74.
Walrod r. Rail, 9 Barb. 271. p. 173.
Walsh V. City Council, 67 Ga. 293.

p. 58.
Walsh V. Dart, 12 Wis. 635. p. 370.
Walters v. Short, 10 111. 252. p. 397.
Walthar v. Warner, 26 Mo. 143. p.

36.
Walton i;. Eldridge, 1 Allen, 203. p.

851.
Walton V. Gavin, 16 Q. B. 48. p. 50.
Wambaugh v. Schlenk, 2 N. J. L.

167. p. 215.
Wanmakcr v. Van Buskirk, 1 Saxt.

Ch.GSo; 23 Am. Dec. 718. pp.316,

318, 333, 340.
Ward V. Baker, 16 Kan. 31. p. 36.
Ward V. Barrows, 2 Ohio St. 241. p.

55.
Ward V. Evans, Ld. Kaym. 928. p.

354.
Ward V. Howe, 38 N. H. 35. pp. 353,

854.
Ward V. Lewis, 4 Pick. 578. p. 86.
Ward V. Stale, 48 Ind. 290. p. 54.
AVard v. Stout, 82 111. S09. p. 19.
AVard v. Ward, 36 Ark. 586. p. 280.
Warder v. Tucker, 7 Mass. 452. p. 0.
Wardour v. Beresford, 1 Vern. 408.

p. 141.
AVarfield v. Brand, 13 Bush, 77. p.

54.
Waring v. Smyth, 2 Barb. Ch. 11. p.

396.
Warner v. Daniels, 1 Woodb. & 31.

90. p. 120.

Warner v. Henbj^ 47 Pa. St. 187. pp.

403, 407.
Warren v. Anderson, 8 Scott, 884. p.

253.
Warren i;. Crew, 22 Iowa, 315. p.

142.
Warren v. Layton, 3 Harr. (Del.) 404.

p. 394.
Warren v. Lusk, 16 Mo. 111. p. 358.
Warron v. Pierce, 6 Me. 1; 19 Am.

Dec. 189. p. 85.
Warren v. State, 1 G. Greene, 106.

p. 525.
Warren v. Webb, 2 Strange, 1129.

p. 427.
Wasden v. State, 18 Ga. 2G4. p. 423.
Waters v. People, 104 111. 545. p.

518.
Watkin's Case, 3 Pet. 193. p. 30.
Watkin's Case, 1 Leigh, 557. p. 491.
Watkins v. Peck, 13 N. H. 360; 40

Am. Dec. 156. p. 405.
Watkyns v. Watkyns, 2 Atk. 97. p.

93.
Watrous v. Rogers, 16 Tex. 410. p.

10.
Watson V. England, 14 Sim. 28. pp.

202, 238.
Watson V. King, 1 Stark. 121. pp.

211, 231, 232.
Watson V. Maxwell, 1 Stark. 121. p.

224.
Watson V. Tindal, 24 Ga. 494. pp.

193, 212.
Watson V. Watson, 9 Conn. 144. p-

30.
Way V. 111. Cent. R. Co., 40 la. 342.

p. 192.
Wealo V. Loraer, Pollex. 55. p. 195.
Weatherford v. Weatherford, 20 Ala.

548. p. 106.
Wcatherhead v. Baskerville, 11 How.

829. p. 40'..
Weaver v. Fairchild, 50 Cal. 360

p. 53.
Wel^b, Ee, Irish Eep. 5 Eq. 235. p.

198.
AVcbb V. Chambers, 3 Ired. (L.) 374.

70.

TABLE OF CASES CITED.

Ixxxvii

T\^cbb V. Dean, 21 Pa. St. 31. pp.

821, 327.
Webb V. Depn, 17 How. 570. p. 503-
Webb V. Fri:z, 8 I5:ixt. 218. p. 65.
Webb V. Stute, 9 Tex. App. IHO, p.

459.
Webber v. Webber, 1 Mete. (Ky.) 18.

p. 51.
Webster's Case. p. 443.
Webster r. Birchmore, 13 Vesey, 802.

pp. 195, 222.
Webber v. Gottschalk, 15 La. Ann.

370. p. 54.
Webster v. Lee, 5 Mass. 534. p. 78.
Weeks V. Ellis, 2 Barb. 325. p. 49.
WciJner v. Scweigert, 9 S. &K. 385.

p. 347.
Weir V. Weir, 3 B. Mon. 045. p. 75.
Welch V. Sackett, 12 Wis. 257. pp.

108, 304.
Welch V. Seaborn, 1 Stark. 474. p.

SOL
Wellauer v. Fellows, 48 Wis. 105. p.

852.
Wellersburg, etc., Co. v. Bruce, 0

Md. 457. p. 54.
Wells V. Burbank, 17 N. H. 393. p.

54.
Wells V. Moore, 15 Tex. 521. p. 397.
Wendell v. Blanchard, 2 N. H. 450.

p. 403.
Wentworth v. Lloyd, 10 H. L. Cas.

689. p. 137.
Wentworth v. Smith, 44 N. 11. 419.

p. 182.
Wentworth v. Wentworth, 71 Me.

83. pp. 212, 215.
Wenz V. State, 1 Tex. App. 36, p.

274.
Wcrk V. Leathers, 1 Woods, 272. p.

102.
Wcrnet v. SlL^sissquoi Lime Co., 40

Vt. 458. p. 344.
West V. State, 1 Wis. 209. pp. 451,

587.
West School District v. Merrills, 12

Conn. 437 p. 53.
Weston V. Hij^'gins, 40 Me. 102. p.
179.

Weston V. Wiley, 78 Ind. 55. p. SS'l
Whaley v. State, 11 Ga. 127. p. 538
Wheat V. Slate, G Mo. 4'5. p. 405.
Wheeler, Re, 37 L. J. (!'. & M.) 40,

p. 211.
Wheeler t?. Raymond, 8 Cow. 311. p

.'iO.
Wheelock v. Hall, 3 N. H. 310. p

54.
Whelton v. Hardesty, 8 El. & CI

232. p. 609.
Wheelwright v. Wheelwright, 2 Mass,

447. p. 303.
Whister v. Drake, 35 Iowa, 103.

353.
Whitakeru. Edmunds, 1 M. & R. ;

Ad. &EI1.G:J3. p. 97.
Whitaker v. Morrison, 1 Fla. 25; 44

Am. Dec. 027. p. 576.
White V. Haas, 32 Ala. 432. p. 390.
Wliito V. Knapp, 47 Barb. 549. p.

White V. Lincoln, 8 Yes. 303. pp.

148, 540.
White V. Loring, 24 Pick. 319. p.

404.
White V. Mann, 26 Mo. 363. p. 224.
White V. Sheldon, 4 Nev. 280. p.

S04.
White V. Wilson, 13 Vesey, 87. p.

179.
Whitelock v. Musgrovo, 3 Tyrw. 543.

p. 254.
Whiteside's Appeal, 23 Pa. St. 114.

p. 201.
AVhitcwell v. Barbour, 8 Cal. 64. p.

29.
Whitford v. Panama R. Co., 23 X. Y.

405. p. 373.
Whiting V. Nicholl, 43 111. 235. p.

201.
Whitman v. State, 34 Ind. 312. p.

118.
Whilton V. State, 37 Miss. 379. pp.

7, 453.
Wickcrsham v. People, 2 111. 128. p.

256.
Wickes f. Adirondack Co., 4Thomp.,

etc., 250. p. 420.

Jxxxviii

TABLE OF CASES CITED.

TViclccs V. Caulk, 5 H. & J. 41. p.

381.
Wickbam v. Page, 40 Mo. 527. p.

36.
Widow's Trust, L. K. 11 Eq. 408.

p. 303.
Wikoffs Appeal, 15 Pa. St. 218. p.

381.
Wilde V. Arsmby, G Cush. 314. p.

393.
Wilcox V. Wilcox, 48 Barb. 327. p.

75.
Wilcox V. Smith, 5 Wend. 231. p.

47.
Wilkes V. Dinsman, 7 How. 89. p.

55.
Wilkie V. Collins, 48 Miss. 496. pp.

449, 584.
Wilkins v. Earle, 44 N. Y. 172. p.

166.
Wilkinson v. Payne, 4 T. K. 468. pp.

94, 435, 451, 586.
Wilkinson v. Sargent, 9 la. 521. p.

77.
Willet V. Com., 13 Bush, 230. p.

284.
Willey V. Di\y, 51 Pa. St. 51. p. 403.
Williams v. Ashton, Johns. & M, 115.

p. 387.
Williams v. Boozeman, 8 La. Ann,

632. p. 2f;4.
Williams v. Donnell, 2 Head, 698. t).

403.
Williams v. East India Co., 3 East,

104. pp. 94, 277, 436
Williams v. Hutchinson, 3 K Y, 312.

p. 75.
Williams v. Ins. Co., 1 Hilt. 345. p.

68.
Williams v. State, 8 Humph. 590. p.

487.
Williams v. Troop, 17 Wis. 463. p.

55.
Williams v. Woods, 16 Md. 220. p.

89.
Williamson v. Fox, 38 Pa. St. 214.

p. 40.
Williamson v. Williamson, 1 Johns.

Ch, 488. p. 425.

Willingham v. Check, 14 S. C. 93

p. 308.
Willis V. Lewis, 28 Tex. 185. pp,

55, 56.
Wills V. Gibson, 7 Pa. St. 154. p

320.
Willson V. Light, 4 Ark. 158. p. 34
Wilson V. Cassidy, 2 Ind. 562. p

160.

Wilson V. Cockrill, 8 Mo. 7. p. 370,
Wilson V. Doughertj', 45 Cal. 34. p

35.
Wilson V. Glenn, 68 Ala. 383. p. 404.
Wilson V. Henderson, 9 S. & M. 375

48 Am. Dec. 716. p. 385.
Wilson V. Hodges, 2 East, 313. pp.

193, 201.
Wilson V. Melvin, 13 Gray, 73. p.

403.
Wilson V. People, 3 Col, 325. p. 35.
Wilson V. Smith, 5 Yerg. 379. p.

17G.
Wilson V. Stoner, 9 S. & E. 664. p.

415.
Winchell v, Edwards, 57 111. 41. p.

142.
Winchelsea Cases, Burr, 1692. pp.

311, 331.
Winehart v. State, 6 Ind. 30. pp. 7,

454.
Wing V. Ungrave, 6 H. L. Cas. 183.

p. 242.
Winkley v. Kaime, 32 N. H. 266. pp.

163, 419.
Weership v. Conner, 42 N. H. 344.

p. 222.
Winter v. Simonton, 3 Cranch C. C.

104. p. 55.
Wise V. State, 24 Ga. 31. p. 518.
Wollaston v. Berkeley, 2 Ch. Div.

213, p. 241.
Wood V. Corl, 4 Mete. 203. pp. 371,

372.
Wood V. Hardy, 11 La. Ann. 7G0.

p. 844.
Wood V. Lake Shore K. Co., 49 Mich.

370. p. 36.
Wood V. Mathews, 73 Mo. 482. p.
181.

TABLE OF CASES CITED.

Ixxxix

Wood V. State, 34 Ark. 341. p. 274.
AVuod V. Terry, 4 L11118. 80. p. o').
AVooJs V. Woods, 2 B:iy, 476. p. 200,
Woods V. Woods, 127 Muss. 141. p.

3')5.
Woods V. State, G B:ixt. 426. p. 5').
Wood worth V. Huiitooii, 40 111. i;]l.

p. 77.
Woolscy V. Morss, 19 Hun, 273. p.

405.
Woolsey V. Villnge of Rondout, 4

Abb. App. Dec, 639. pp. 47. 60.
Wootcn V. Null, \6 Gu. 609. p. 345.
AVorley v. Ili-b, 40 Ala. 171. p. 320.
Wray v. Due. 10 S. & JI. 452. p. 54.
Wright V. Delufield, 23 Barb. 498.

p. 374.
Wriirlit V. Hicks, 12 Ga. 155. p. 116.
Wrightr. Holdgate, 3C. «fcK.158. p.

118.
Wrifrht V. Lawson, 2 M. «& W. 739.

p. 89.
Wrii^ht V. Netherwood, 2 Salk, 502.

p.241.
Wright V. Orient Ins. Co., 6 Bosw.

270. pp. 191, 581.
Wright V. People, 4 Neb. 408. p.

459.

Wright V. State, 58 Miss. 832. p. 54.
Wynne v. Waring, 1 T. E. 20. p.
336.

y.

Ynrborough v. State, 41 Ala. 405. p.

4S7.
Yii: nell V. Moore, 3 Cold. 173. p.

320.
Yules V. Houston, 3 Tex, 433. pp.

93, 435, 448, 583, 584.
Yuuko V. State, 51 Wis. 466. p. 493.
Ycaton V. Bk. of Alexandria, 6

Crunch, 9. pp. 17, 73.
Young V. Dorsey, 2 Litt. 202. p. 36.
Young t;. liidonbaugh, 3 Dill. 23. p.

36.
Youngman v. Linn, 52 Pa. St. 413.

p. 403.
Youngs V. HeflFner, 36 Ohio St. 232.

p. 200.

z.

Zeigler v. Eckhart, 6 Pa. St 13 ; 47

Am. Dec. 428. p. 304.
Zeigler v. Gray, 12 S. & R. 42. p.

346.
Zerano v. Wilson, 8 Cush. 424. p.

354.

THE LAW OF

Presumptive Evidence

(INCLUDING PEESUMPTIONS BOTH OF
LAW AND FACT)

REDUCED TO RULES.

(1)

I

PART I.

THE PRESUMPTION OF KNOWLEDGE.

(3)

CHAPTEE I.

TIIE PRESOIPTIONS OF KNOWLEDGE OF LAW AND

FACT.

RULiE 1. — Every one is presumed to know the law when
ignorance of it would relieve from the consequences
of a crime or from liability upon a contract.^

The presumption that every person knows the law is often
spoken of, but it is clear that there is no such general pre-
sumption. When Mr. Dunning, in arguing before Lord
Mansfield, said; "The laws of this country are clear,
evident, and certain ; all the judges know the laws, and
knowing them administer justice with uprightness and
integrity," that learned judge replied : *'As to the certainty
of the law mentioned by Mr. Dunning, it would be very
hard upon the profession if the law was so certain that
everybody knew it ; the misfortune is that it is so uncer-
tain that it costs much money to know what it is, even in
the last resort."^ "Is it not a mockery," said Mr.
Livingston, in his report on the Louisiana Penal Code, *' to
refer me to the common law of England ? Where am I to
find it? Who is to interpret it for me? If I should apply
to a lawyer for a book that contained it, he would smile at
my ignorance, and pointing to about five hundred volumes
on his shelves would tell me those contained a small part of
it ; that the rest was either unwritten or might be found in
London or New York, or that it was shut up in the breasts
of the judges at Westminster Hall. If I should ask him to

1 See Laing r. Colder, 8 Pa. St. 470; 49 Am. Dec. 533 (1S4S) ; Kay v. Connor, 8
Humph. 6'24 ; 49 Am. Dec. 090 (1848) ; Cluff v. Mutual Benefit Life Ins. Co., 13 Allen, 308
(1860) ; Sberrill v. Hopkins, 1 Cow. 103 (1823) ; Hanrick r. Andrews, 9 Port. 576 (18:59) ;
Cast V. Drakely, 2 Gill, 330 (1*14) ; Oilex r. Card, 23 Ind. 212 (1804) ; Brown r. Beers,
6 Conn. 213 (1826) ; Cockayne r. Sumner, 22 Pick. 117 (1839).

» Jones V. Randall, Cowp. 38.

(5)

6 PRESUMPTIVE EVIDENCE. [rULE 1.

examine his books and give me the information which the
law itself ou"-ht to have afforded, he would hint that he
lived by his profession, and that the knowledge he had
acquired by hard study for many years 6ou\d not be gratu-
itously imparted." Certainty in the law has hardly
increased since Lord Mansfield's time, and Mr. Livingston's
lawyer would to-day point to a library of five thousand
instead of five hundred volumes. We may, therefore, safely
say with Mr. Justice Maule, " there is no presumption in
this country that every person knows the law ; it would be
contrary to common sense and reason if it were so," and
add, as he did, with a quiet dig at his learned brethren : *' If
everj'body knew the law, there would be no need of courts
of appeal, whose existence shows that judges may be igno-
rant of law."

Illustrations.

I. A. sues B. in trover for property. On the trial evidence is intro-
duced of admissions by B. that the property is A.'s. The presumption is
that these admissions were made not only with a knowledge of the facts,
but of his legal rights growing out of these facts.i

II. An action is brought against the makers of a note personally signed
by them as trustees of the M. E. Church. The defendants plead, that
they were induced to give the note by representations that they would
not be individually liable. This is no defense, for the presumption is that
they knew their liability.

III. A. having two judgments of different dates against G. issues exe-
cution on the second, under which G.'s land is sold to B. A. afterward
proceeds against the land under the first judgment, to which B. replies
that he had purchased believing the law to be that the sale on the second
judgment extinguished the first. This is no defense.*

IV. The drawer of a bill of exchange knowing that time had been given
by the holder to the acceptor, but not knowing that this discharged him,
and thinking himself still liable, promises to pay it if the acceptor does
not. He is bound by this promise though made under a mistake of law.

1 BuUer v. Livingston, 15 Ga. ."jes (ia54).

» Means v. Graham, 8 Blackf. 144 (1846).

3 Shotwell V. Murray, 1 Johns. Ch. 512 (1815) , and see Champlin v. Layton, 18 Wend.
407 ; Zl Am. Dec. 382 (1837).

« Stevens v. Lynch, 12 East, 38 (1810), and see Goodman v. Sayres, 2 Jac. & W. 26.3
(1820) ; Brisbane v. Dacres, 5 Taunt. 143 (1813) ; East India Co. v. Tntton, 3 B. & C.
280 (1824); Stockley i-. Stockley, 1 V. & B. 23 (1813); Clarke v. Dutcher,9 Cow. 674
(1824) ; Warder v. Tucker, 7 Mass. 452 (1811).

RULE 1.] THE rnESUMPTION' OF KNOWLEDGE. 7

v. A statute prohibits the selling of liquor to an intoxicated person,
and prescribes a penalty therefor. B. sells liquor to an intoxicatea
person not being aware of the law. B. Is nevertheless liable as he is
presumed to know it. ^

VI. A public officer is indicted for extortion in taking a fee before it
was due. The fee being due to him after a time in any event, he thought
that the law allowed him to take it in advance. This is no excuse and he
is convicted.'

VII. A. is indicted for suffering gaming in his house. It appears that
A. does not know it is unlawful to permitgamiug in his house, ilis igno-
rance of the law does not excuse A.'

VIII. A statute requires attorney's bills to inform their clients on their
face of the mailers transacted and the courts iu which the things charged
for have been done. A bill delivered to a client contains charges for
''perusing decrees and reports at the report office." " Six clerks' office
searching for a record." The client will not be presumed to know iu
what courts these offices are.*

IX. At an election, a number of votes are polled for one B., who Is
acting at the time as returning officer. By the law a returning officer is
not eligible as a candidate, and all the voters know that B. is acting in this
capacity. There is no presumption that they knew that he is disqualified.*

X. A. finds a mortgage on record over thirty years old. The law from
lapse of time presumes it paid. If A. purchases the mortgage he is pre-
sumed to know that it is presumed to be paid.*

XL A. is sentenced to the penitentiary by a court having no jurisdic-
tion to try him. In in action against the gaoler and contractor for
trespass, the law presumes that they knew the law and that they had no
right to hold him.'

XII. A. having found some property secretes it with intent to defraud
the owner contrary to a statute. A. is indicted under the statute for lar-
ceny. A. is a negro. The fact that it is the common belief among the
negroes in the neighborhood that property belongs to the finder is irrel-
evant.®

XIII. A. deals with a person whom he knows to be a broker. A. is
presumed to know that he is acting as an agent for some third person.*

1 Whitton r. State. 37 Miss. 379 (1859).

a Com. V. Bagley, 7 Peck. 279 (1828). But see Cutler v. State, 36 N. J. (L.) 125 (1873)
where in a similar case, the coiiTiction -was set aside on the ground that the intent
was wanting.

« ■Winehart v. State, 6 Ind. 30 (1854).

* Martindalc v. Falkner, 2 C. IJ. 715 (1840).

6 Queen v. Mayor of Tewkesbury, I,, li. 3 Q. B. 620 (1868).

• Goodwynt'. Baldwin, 59 Ala. 127 (1877).

1 Pattison v. Prior, IS Ind. 440 (1.SG2), and see Daniels v. Barney, 22 Ind. 207 (18G4).

« State V. Welch, 73 Mo. 2*4 (1880).

8 Baxter v. Dureu, 29 Me. 434 ; 00 Am. Dec. G02 (1849).

8 PRESUMPTIVE EVIDENCE. [rULE 1.

In case I. the trial court had charged the jury that if the
admissions "were made with a full knowledge of all the facts,
and his rights growing out the facts, they were evidence
a^^ainst B. On appeal this was held erroneous. *' Until the
contrary appears," said Lumpkin, J., *' every man is taken
to be cognizant of the law. The doubt and difficulty has been
not whether the burden of proof is not cast upon him who
seeks to screen himself from the effect of his acts by show-
ing that they were done in ignorance of his legal rights ;
that has never been disputed. And the only question is
whether the party will be allowed this excuse. Whereas,
in this case it was held that the solemn admissions of fact
by B., that the title to this property was not in him but A.,
did not make even ^ prima facie case as to proof, unless it
was shown that he made these admissions with not only a
full knowledge of all the facts, but of his legal rights grow-
ing out of those facts. Such a doctrine, we apprehend, is
not only unsupported by authority, but manifestly against
principle."

Incase II, it was said: "That representation cannot
affect the plaintiff 's right to recover. It was a representa-
tion made to the defendants respecting a question of law,
and can not be considered as having misled them. They
must be presumed to have known the legal effect of their
contract." ^

In case III. it was said : "According to B.'s own show-
ing he was only under a mistake in point of law ; and that
mistake not being produced by any fraud in A. is not suffi-
cient of itself to affect the former lien or the validity of the
sale. * * * In gucji ^ case the general doctrine which

1 In Storrs v. Baker, 6 Johns. Ch. 166 (1822), it was said by the chancellor: " The
presumption is that every person is acquainted with his own rights provided he Jias
had reasonable opportunity to know them, and nothing can be more liable to abuse
than to permit a person to reclaim his property in opi)osition to all the equitable
circumstances which have been stated, upon the mere pretense that he was at the
time ignorant of his title." " The courts do not undertake to relieve parties from
their acts and deeds fairly done on a full knowledge of facts, though under a mistake
of law. Every man is to be charged at his peril with a knowledge of the law.
There is no other principle which is safe and practicable in the common intercourse
of mankind." Lyon v. Kichmond, 2 Johns. Ch. 51 (1816).

RULK 1.] THE PRESUMPTION OF KNOWLEDGE. 9

wc find established must prevail that every man is to be
charfjed with a knowledge of the law."

In case IV. Lord EllenborouMi ruled that the defendant
could not defend himself upon the ground of his ignorance
of the law when he made the promise.

In case V. it was said: "As he is bound to know the law,
he is held to the consequences of a willful violation of it
whether he knew of its existence or not. Otherwise it
would be difficult to punish any man for a violation of law,
because it might be impossible to prove that he had knowl-
edge of the law. Hence the legal presumption that every
man knows the law, and that his violations of it are will-
ful."

In case VT. it was said: <' This is the case of an honest
and meritorious public officer who by misapprehension of
his" rights has demanded a lawful fee for a service not yet
performed, but which almost necessarily must be performed
at some future time. If we had authority to interfere and
relieve from the penalty, we certainly should be inclined to
do so, but we are only to administer the law."

IncaseVIII.it was said: <' There comes a charge for
perusing decrees and reports at the report office, which it
is said the client must know could only be in chancery. I
do not agree that the client is to be presumed to know any
thing of the kind. Then there is a charge for * attending
at the six clerks' office, searching for a record.' This, it
is said, must be in a court of chancery. I really am unable
at the present moment to say whether there is or is not such
an office now existinc: as the six clerks' office: and I do not
see why Miss Mary Falkner is bound to know it. The
bill * » * presupposes the client to possess a consid-
erable knowledge of the law. There is no presumption in
this country that every person knows the law; it would be
contrary to common sense 8,nd reason if it Avcre so."

*' Every elector," said Blackburn, J., in case IX. *' must
have known that B. was the mayor, and every elector who
saw him presiding at the election must have known as a fact.

10 PEESU3IPTIVE EVIDENCE. [rULE 1.

that he was the returning officer, and evciy elector who was
a lawyer and who had read the case of Reg. v. Owens,^
would know that he was disqualified. From the knowledge
of the fact that B. was mayor and returning officer, was
every elector bound to know as a matter of law that he was
di:<qualified? I agree that ignorance of the law does not
excuse. But I think that in Martindale v. Falkner (Case
VIII.), Maule, J., correctly explains the law." And Lush, J.
added : "A maxim has been cited which it has been argued
imputes to every person a knowledge of the law. The
maxim is ignorantia legis neminem excusat, but there is no
maxim which says that for all intents and purposes a per-
son must be taken to know the legal consequences of his
acts." 2

Case XI. carries this presumption very far. In Brent v.
State,' it was ruled that the presumption of knowledge of
law did not extend to presuming that a person knew how
the courts would construe a statute, and whether it was
constitutional or unconstitutional. The defendants here
were indicted for conducting a lottery, and showed an act
of the Legislature permitting them to do so. The court
held the act unconstitutional, but said : " We see no good
reason why the State as well as an individual is not to be
held bound by this salutary and just maxim that ' no man
shall take advantage of his own wrong.' * We think it clear
that the appellant did not intend to violate any penal or
other law of the State. In other words, that he acted in
good faith, and verily believed he was doing what the State,
by this statute clearly authorized him to do. But it is
insisted, on the part of the State, that everybody is pre-
sumed to know the law. This, properly understood, is
true, but it is a rule of presumption, adopted from neces-
sity, and to avoid an evil that would otherwise constantly

1 2 E. A E. 86. And see Black v. Ward, 27 Mich. 191 (1S73).

s Watrous v. Rogers, 16 Tex. 410 (1856).

» 4.3 Ala. 297 (1869).

* Broom's Legal Maxims, top page 205.

RULE 1.] THE PRESU3IPTI0N OF KNOWLEDGE. 11

perplex the courts, in the administration of the criminal
law; that is, the plea of ifrnorance. Hence the maxim,
that 'ignorance of the law excuses no one.' The courts
and the profession, however, well know that this necessary
rule of presumption, is often, and perhaps oftenor than
otherwise, presuming against the truth. But we think the
State presses this necessary rule beyond its proper meas-
ure, and insists that the appellant was not only bound to
know the existence of the law, but in this case, Avas pre-
sumed to know this special act of the Legislature was, and
would be held, unconstitutional, and was, therefore, void
and no law. AVe can not consent to carry this rule of pre-
sumption to this extent; it must be confined to presuming
that all persons know the law exists, but not that they arc
presumed to know how the courts will construe it, and
whether, if it be a statute, it will, or will not, be held to be
constitutional. To extend this rule beyond this limit, will be
to implicate the Legislature who passed, and the Governor
who approved the act, in a charge of gross immorality and
dishonesty. If the appellant is to be presumed to know
the act was unconstitutional, the same presumption will fix
upon them the same extent of knowledge; that is, that
they knew the act, when it was passed and approved, was in
conflict with the constitution ; and if this be so, it will be a
hard matter to clear either from this grave implication.
But we are satisfied the rule must have the limit we give it.
To hold otherwise, will take from the rule all its virtue,
and make it odious to all right and just thinking men."

Incase XII. it was said: " The defendant offered evi-
dence to prove that it was a general belief among colored peo-
ple in that county that money or property found, having no
marks upon it to indicate its ownership, belonged to the
finder. The court proper!}'' excluded the evidence. It is a
principle as old as the common law that ignorance of the
law is no excuse for its violation ; and the law is the same
for a colored as for a white person. We have not now a
criminal code for the whites and a different one for the

12 PRESUMPTIVE EVIDENCE. [rULE 1.

blacks. Under our present constitution no law making
such a distinction would be of any validity. Wharton's
Crim. Law, sec. 88, p. 1794, is cited as sustaining the
proposition that taking possession of money and determin-
ing to keep it under an honest belief of a right to do so
because found, is a good defense. There is no section 88 at
page 1794, and the sections on that page do not relate to the
subject under consideration, but section 87, page 87, asserts
the general proposition that ' ignorance or a mistake of fact
is admissible for the purpose of negativing a particular
intention,' and that ' when a particular intent is necessary
to constitute the offense (e.g., in larceny, animus furandif
in murder, malice), then ignorance or mistake is evidence to
cancel the presumption of intent and to work an acquittal
either total or partial.' But in section 88, he says:
' When a statute makes an act indictable irrespective of
guilty knowledge, then ignorance of fact is no defense.'
On this proposition some learned authors differ in opinion
fromMr. Wharton.^ However this may be, the section of our
criminal code in question makes it a felony in a finder of
goods or money belonging to another to convert them to his
own use with intent to defraud the owner, or to make way
with, or secrete them with that intent ; and proof of igno-
rance of the law, or that the finder believed that he acquired
the title by finding the property, does not tend to disprove the
intent to convert it to his own use. If he did the act with
the double intent named in the section, it is no defense that
in his ignorance of the general law he supposed that by
finding he became the owner of the property. It would be
no defense that he was ignorant of the section under which
he was indicted, which of itself apprises him that lost prop-
erty does not belong to the finder, and why his ignorance of
the general law to the same effect should avail him as a
defense, is beyond our conprehension. By imposing a severe
punishment upon the finder who converts to his own use

1 Bishop, 4 South. Law Rev. (N. 8.) 58.

EULE 1.] THE rRESUMPTION OF KNOWLEDGE. 13

the property of another, direct information is imparted
that such does not become his by such tinding. This is the
import of the hinguage of the section, and it is in harmony
with a legal principle well established long before that sec-
tion was enacted. It will not be contended that ignorance
of the statutory provision will excuse its violation, and
if ever ignorance of the law could constitute a defense it
certainly will not do so when the identical section under
which the accused is prosecuted informs him of the very
principle of law of which he avers his ignorance."

So a suitor in court is presumed to know all the proceed-
ings which take place in his case.^ And the terms of the
Supreme Court of a State being fixed by statute, parties to
a cause in the courts of such State are presumed to know
the terms of the Supreme Court. '^ So parties are presumed
to know the contents of the public records^ and a member
of a municipal corporation is presumed to be aware of its
by-laws and ordinances.* But the officers of a municipal
corporation are not ])rcsumed to be acquainted with the
contents of all the official records. L. brings an action
against the mayor and clerk of the city of A. for a libel.
The libel consists in a statement in their annual report that
there is due from L., as tax collector, a certain sum. The
statement is incorrect, as shown by the municipal records.
There is no presumption that the defendants knew this to be
so.' The presumption of knowledge of law may be
rebutted. *' For instance, if there be an intention to pass
a freehold estate, and the vendee accepts a deed of feoffment
•without livery, he will be relieved upon the ground that he
was under a mistake as to the law, for the intention being
clear, the failure to effect it makes the mistake manifest,
and rebuts the presumption. It is different, however,
where the intention is carried into effect, because in such

1 Gauldin v. Shebce. 20 Ga. 531 (1856).
» Loomis V. Uiley, 24 111. 307 (18C0).
' Lnncey v. nryant, 30 Me. 4G6 (1819).
« Palmyra v. Morten. 25 Mo. 5'.i3 (1857).
» Hart V. Koper, (3 Ired. (Eq.) 349 (1849).

14 PRESUMrrn'E evidence. [rule 2.

cases there is nothing to rebut the presumption, and the
ignorance of the party can only be shown by going into
proof, which is not admissible.^

RULE 2. — But there is no presumption of knowledge cf
private or foreigrn laws.

Illustrations.

I. B. is a teacher in a public academy and expels a scholar for disobe-
dience. The by-laws of the academy provide that no pupil shall be
expelled but by order of the Board of Trustees. There is no presump-
tion that P. knew of the existence of this by-law.*

II. A. dies in Massachusetts leaving real estate there and in New York.
His heirs are a niece, a child of one of his sisters, and three nephews,
the children of another sister. By the laws of Massachusetts, the four
heirs are entitled to share in equal propoi'tions, but by the laws of New
York the niece is entitled to one-half and the nephews to one-sixth. The
heirs divide the New York property equally amongst them, but afterward
discovering that she was entitledtoalarger share, the niece brings suit to
have the settlement set aside. She can recover, as she is not presumed to
know the law of New York.'

In case II. it was said: " In all civil and criminal pro-
ceedings every man is presumed to know the law of the
land, and whenever it is a man's duty to acquaint himself
with facts, he shall be presumed to know them. But this
doctrine does not" apply to the present case. It was not the
duty of the plaintiff to know the laws of New York, nor
does ignorance of them imply negligence. * * * The
parties knew in fact that the intestate died seized of estate
situated in the State of New York. They must be pre-
sumed to know that the distribution of that estate must be
governed by the laws of New York. But are they bound at
their peril to know what the provisions of these laws are?
If the judicial tribunals are not presumed to know, why
should private citizens be? If they are to be knoVn to the

1 P.oyers v. Pratt, 1 Ilumph. 90 (1839).
s Iluvcn V. Foster, 9 Pick. 112 (182!)).
8 King V. Doolitlle, 1 Head, 77 (1S58),

RULE 3.] THE PRESmiPTION OF KNO^VLEDGE. 15

court by proof like other facts, wliy should not ignorance
of them by private individuals have the same effect upon
their acts as ignorance of other facts? Juris ignoranlia
est cum jus nostiiim ignoramus^ and does not extend to
foreign laws or the statutes of other States. This rule does
not extend to special or private laws which are only
intended to operate on particular individuals, as for example
a private bank charter. Nor does it extend to foreign laws
or the laws of other States.^ * In some cases,' said Mr.
Justice "Washington in an early case, 'a foreigner is not
bound to take notice of foreign revenue laws. For if he
makes a firm and final contract, completed in his own or a
foreign country, it is nothing to hira whether a use may or
may not be made of the contract in violation of the revenue
laws of a foreign country. In the case of HoJlman v.
t7o/mso?i,Hhe sale was completed in France, and the vendor
was in no respect concerned or aiding in the illicit use
intended to be made of the goods, though he knew of such
intention. Not so, as to a citizen who though the contract
be complete, yet if he be knowingly instrumental to a broach
of the laws of his own country he can not have the aid of
those laws. * * * But if the contract of the foreigner
is to be completed in or has a view in its execution in a
foreign country, he is bound to take notice of them."

IIULE 3. — Persons engaged in a particular trade are
presumed to be acquainted Avitli the value of articles
bought and sold therein (A), the names under which
they go in such trade (B), and the general customs
obtaining and followed there (C).

Illxistrations.
A.

I. A person takes some bank bills to a banker to be exchanged forpoUl,
and the banker, after examining them buys them from him at a dibcoimt.

1 Cambiose v. Maffet, 2 Wash. C. C. 104 CISOT).
> Cowp. 341.

16 PRESUMPTIVE EVIDENCE. [rULE 3.

After'wards discovering that one of the bills is wortliless, he brings an
action for the money lie paid for it. He can not recover, there being no
evidence of fraud or knowledge on the customer's part. The banker is
presumed to be acquainted with the value of the bills purchased by him.^

B.

I. D. imports into New York a quantity of spelter, which under the
name of tutenague is exempt from duty. The collector, however,
claims and receives a duty of 20 per cent thereon, and subsequently D.
sells the spelter to M. at long price, which by custom gives a purchaser
the right to any drawback on duty which maybe made. Afterward the
collector decides that spelter is not dutiable, and pays back to D. the 20
per cent. In an action by M. claiming this duty M. can not recover,
as the presumption is that both M. and D. knew at the time of the sale
that the article was not dutiable.*

*' It is a reasonable presumption," it was said in case I.,
*' that those who are dealing in articles of commerce,
especially those who purchase by wholesale from the
importers, are acquainted with the different names by which
such articles are known to the commercial world. And if
spelter was actually exempted from duty by the names used
in the section of the statute relative to exempt articles,
probably both parties to this sale had reason for believing
that the claim made by the collector was unfounded and
that it would probably be reversed, and the duties be
refunded to the importer. If so, the purchaser should have
made his contract with reference to that event, so as to
secure for himself the benefit of the refunded duty in case
it should turn out that the collector was wrong."

C.

I. A. employs B., a broker, to trade for him on the Stock Exchange,
The general rules of the Exchange are presumed to be known to A., and
B. has an implied authority to contract in accordance therewith.*

n. It is the general custom in a certain trade to charge interest on
accounts after a fixed time. Parties dealing therein are presumed to be
cognizant of this custom, and are bound by it.*

1 Hinckley t>. Ker8ting,21 III. 247 (1859),

» Moore v. Des Arts, 2 Karb. Ch. 636 (l&iS).

» Sutton V. Tatham, 10 Ad. & Ell. 27 ; Bayliffe v. Butterworth, 1 Ex. 25.

* McAJister v. Reab, 4 Wend. 483, 8 Id. lO'J; Meech v. Smith, 7 Id. 315.

KULE 3.] THE rHESmiPTIOX OF K^O^^'LEDGE. 17

in. It is the general custom of a bank to demand payment of notes
and give notice on tlie fourth instead of the tliird day after they are due.
Persons negotiating notes at this bank, or making coniuiercial paper for
the purpose of having it negotiated there, are presumed to know this
custom. 1

IV. A dry goods salesman sues B., his employer, for wrongful dismis-
sal. There is a general custom in the dry goods trade, that when a clerk
or salesman begins a season wltliout a special contract, he can not be dis-
missed until the end of it. Both A. and B. are presumed to know this
custom.*

All trades have their usages, and when a contract is made
with a man about the business of his craft, it is framed on
the basis of such usage, which becomes a part of it, unless
there is an express stipulation to the contrary.'

In case I. it was said: "A person who deals in a particu-
lar market must be taken to deal according to the custom
of that market, and he who directs another to make a con-
tract at a particular place must be taken as intending that
the contract may be made according to the usage of that
trade."

In case II. it was said: '* The uniform custom of a mer-
chant or manufacturer is presumed to be known to those in
the habit of dealing with hira, and in their dealings they
are supposed to act in reference to that custom."

In case III. it was said: *' The parties are bound by such
usage whether they have a personal knowledge of it or not.

1 Mills r. Bank of U. S., 11 Wheat. 431; Renner v. Bank of Colnmbia, 9 Id. 582;
Bank of Washington v. Triplctt, 1 Tet. 25; Ycalon v. Bank of Alexandria, 5 Cranch,
9; Smith v. Whiting, 12 Mass. 6; Dorchester, etc., Bank r. Kew England Bank, 1
Cush. 177.

« Given V. Charron, 15 Md. 502, and see Lyon r. George, 44 Md. 295.

8 Pittsburg r. O'Xeil, 1 I'eun. St. 34.5; Riudskoff v. Barrett, 14 Iowa, 101; Beatty
V. Grcgorj-, 17 Id. 109; Toledo, etc., Insurance Uo. v. Speares, 16 lud. 52; Grant v.
Lcxinirtoti Fire Insurance Co. ,5 Id.2",; Barrett r. Williamson, 4 McLean, 589; Greaves
V. Legg, 11 Ex. 642; 2 II. &X. 210. lu a New York case Folger, J., said: "There are
cases of principal and agent where one has been sent by another to do acts in a
particular business to be done at a particular locality— as on Stock Exchange —
where the power to deal is a privilege obtained by the payment of a fee, and is
restricted to a body which has for its regulation and government come under certain
prescribed rules or established usages ; and as the agent could not do the will of his
principalnor could the principal himself, save in conformity with those rules or
usages, it is held that the principal must be bound thereby, whether cognizant of
them or not, and that ignorance will uot excuse him." Walls v. Bailey, 49 X. Y. 464

18 PEESmiPTIVE EVIDENCE. [llULE 4.

In the case of such a note the parties are presumed by
implication to agree to be bound by the usage of the bank
at Avhich they have chosen to make the security itself nego-
tiable." It must be borne in mind, however, that this
knowledge is presumed only where the custom is a general
and notorious one. A local, special custom in a particular
trade is not presumed to be known even to persons doing
business therein.^

RULE 4 . — The contents of a writing signed by a party
liimself , or by another at his request, are presumed
to be knoAvn to him (A), and so of a i>aper drav^Ti up
by one for another (B), and the matters ref eri*ed to in
such writing (C).

Illvstrations.

A.

I. An action is brought against F. on a written contract. S. testifies
that he signed it at F.'s request for him, as F. could not write, but he
does not remember whetlier or not the contents were read over or
explained to F. The presumption is that F. knew the contents.^

II. A. signs an agreement to talie shares in a projected railroad, think-
ing that he would not be called on to pay until the road was completed.
Afterwards he finds out that the agreement calls for paj'ment at once.
In an action against him A. is presumed to have been acquainted with
the contents of the paper.*

III. A. signs a promissory note which has no date, the payee afterwards
filling in a date prior to the time of A.'s signing. The presumption is
that A. knew that the note was not dated.*

IV. A. signs a will with his mark. The presumption is that A. knows
its contents.^

1 Miller v. Bwrke, 68 K. T. 625; Flynn v. Murphy, 2 E. T>. Smith, 378; Farmers,
etc., Bank v. Sprague, 62 N. Y. 605; Pierpont v. Fowle, 2 Woodb. & M. 23; Smith v.
Gibbs, 44 N. 11. 335.

Harris v. Story, 2 E. D. Smith, 363 (1S54).

3 Clem V. R. Co., 9 Ind. 4S9 (18.57),

* Androscoggin Bank v. Kimball, 10 Cush. 374 (1852).

6 Doran v. Jliillen, 78 111. ."12 c1S7.j). Signing a paper as a witness creates no pre-
sumption that he knew its contents. Hill v. Johnston, 3 Ired. (Eq.) 432 (1S44).

KULK 4.] THE rriESUMmoN of knowledge. 19

In case IV. it was said: " The M'ill is found with lii.s si^:-
nature to it, and the presumption is that lie did not sign it
without knowing its contents. Such is the usual presump-
tion in reference to all instruments, and we are aware of no
distinction between persons who can and who can not write."

(B.)

I. A., an attorney, has a claim against B. for professional services.
B. afterward forms a partnership witli C, A. drawiu;^ up tlie articles.
A. afterward brings suit on the claim against the firm. A. is presumed
to know tlie terms of the partnership between B. and C.^

II. A. is the payee of a promissory note signed by B. and C. A. is pre-
sumed to know the relation of the parties to the note, as that C. signed
simply as surety.-

(C.)

I. An assignment is made of a patent for an " horological cradle," the
date of the patent being recited in the deed. In an action on a note given
for purchase-money, it turns out that the patent is not for an "horologi-
cal cradle," but only for an ornament for a such a machine. The pre-
sumption is that purchaser exaniiued the patent and knew this.^

In case I. it was said: " The assignments refer specific-
ally to the patent by date, and it may not be a very violent
presumption to suppose that the purchasers examined it to
see what they were buying. Should I buy a piece of land
of a party by some general descri[)tion, which, without
some reference to something else, would be unintelligible,
but in my deed reference is made to the original patent by
which it Avas conveyed by the government to my grantor,
the description would become as certain, definite and satis-
factory as if that description were coi)ied into my deed,
and nothing short of positive proof of a fraud, or clear
mistake, would remove the presunjption that I had exam-
ined or understood the contents of the patent."

1 Burrctt v. Dickson, 8 Cal. 113 (1857).
- Ward v. Stout, 32 111. 3'J9 flSCS).
8 Myers v. Turner, IT 111. 17'J (1855).

20 PRESUMPTIVE EVIDENCE. [rULE 5.

EULiE 3. — Tlie burden of proof is on the party to sliow
a material fact of wliicli lie is best cognizant.^

Illustrations.

I. A suit is brought by R. and S. as partners in the firm of R. B. &
Co.. The defendant alleges that all the partners in the firm have not
been joined. The burden is on the plaintiff to show that they have.*

II. A. after coming of age settles with his guardian and receives
money in the hands of his guardian derived from the sale of real estate.
The presumption is that he received this money with knowledge of
whence it came.^

III. There is an old well on C.'s premises into which the horse of N.
falls, and is killed. It is covered with weeds and grass so as to be
unseen. The presumption is that C. knows it is there.*

IV. An action is brought against B. for marrying a minor without the
consent of her parent or guardian. The burden is on B. to show this
consent.*

V. A statute prohibits the sale of liquor except for certain purposes.
B. is charged with selling liquor. The burden is on B. to show that the
liquor sold was sold for the excepted purposes.^

VI. A statute requires railroad companies to fence their tracks except
where the owners of the adjoining lands have fenced or agreed with the
company to do so. A railroad company is sued for negligence in killing
stock on an unfenced part of their line. Their defense is that thty were
not required to fence as the owner of the land had agreed to. The pre-
sumption is that there was no such contract and the burden is on the
railroad to prove it.^

" It is the opinion of the court/' it was said in case I.,
" that the onus probandi was on the plaintiff to establish the
fact that they alone composed the firm of R. B. & Co.
because the name of B. used in the sign of the firm implied
that he was a real person, and a partner in interest in the

1 Ford V. Simmons, 13 La. Ann. 397 (1S5S).

2 Hugely «. Gill, 15 La. Ann. 509 (18(iO), and see Bowman v. McElroy, 15 Id. 903
(18(i0).

2 Corwin v. Shoup, 76 111. 246 (1875).

* Nelson V. Central II. Co., 48 Ga. 152 (1873).

b Medloc.k v. Crown, 4 Mo. 379 (183(i).

« llacbaugh v. City of Monmouth, 74 111. 367 (1874). So a party indicted for sell-
ing liquor without a license must show that he had a license. Bliss v. Brainard, 41
X.II. 256 (ISRO) , State v. Foster, 23 X. H. 348 (1851).

' Great Western R. Co. v. Bacon, 30 111. 347 (1863).

RULE 5.] THE niEStrMPTIOX OF KNOWLEDGE. 21

concern; and if so ho should have been joincsd as a party
plaintiff in the action. But if the name of B. in the style
of the firm were a mere fiction, then the fact should have
been proved by the plaintiffs, because they were not only
more cognizant of the fact, but the evidence of it, perhaps,
was in their exclusive possession. The burden of proof is
on the party who has to support his case by proof of a fact
of which he is supposed to be the most cognizant."

In case III. it was said: "The presumption of law is
that the owner of the lot knew that the well was on it; as
the owner when in possession is presumed to know the con-
dition of his own property, if a natural person, or by its
agents or employes, if an artificial one."

In case VI. it was said: " This 'count is on the statute
which requires the railroad company to fence its road where
it runs through enclosed lands, except where it is fenced by
the proprietor, or where the company has a contract with
the proprietor of the lands that he shall fence the road.
The mule was killed by a train on the defendant's road, at
a place where it passes through enclosed grounds, and
where it is not fenced, and the only question is, whether it
was the duty of the plaintiff to prove that there was no
contract between the company and the proprietor of the
land that he should fence the road. The statute requires,
in general terms, all railroad companies to fence their roads,
and then makes several exceptions, one of which is when
it runs through enclosed lands, the proprietor of which has
agreed to fence it. "We have repeatedly held that it is
necessary, in pleading, to negative all these exceptions.
Whether it is necessary for the plaintiff to prove these
negative averments, must depend upon their nature and
character. AVhen it is as easy for the plaintiff to prove t'lo
neirative as it is for the defendant to disprove it, then the
burden of proof must rest upon him, as that the place
where the animal was killed was in a town or village,
or Avas not more than five miles from a settlement ; but
where the means of ))rovin^ the neirative are not M'ithiu tlic

1 o o

22 PRESUMPTIVE EA'IDENCE. [rULE 5.

power of the plaintiff, but all the proof on the subject is
■within the control of the defendant, who, if the negative is
not true, can disprove it at once, then the law presumes the
truth of the negative averment, from the fact that the
defendant withholds or does not produce the proof, which
is in his hands if it exists, that the negative is not true. In
other words, the burden of proof is thrown upon the
defendant to prove the affirmative against the negative
averment. There are cases between these extremes, where
the party averring a negative, is required to give some
proof to establish it. Indeed, it is not easy to lay down
a general rule by which it may be readily determined, upon
which party the burden of proof lies, when a negative is
averred in pleading. "Each case may depend upon its
peculiar characteristics, and courts must apply practical
common sense in determining the question. When the
means of proving the fact are equally within the control of
each party, then the burden of proof is upon the party
averring the negative ; but when the opposite party must,
from the nature of the case, be in possession of full and
plenary proof to disprove the negative averment, and the
other party is not in possession of such proof, then it is
manifestly just and reasonable that the party thus in posses-
sion of the proof should be required to adduce it, or upon
his failure to do so, we must presume it does not exist,
v/hich of itself establishes the negative. Such is the case
here. If the railroad company has a contract with the
proprietor of this land that he shall fence it, it is no trouble
to produce it, and thus exonerate itself from the liability
to build the fence. If the defendant does not produce
such a contract the presumption is that none exists."

"Where a party asks equitable relief on certain facts,
and the defendant answers that he has no knowledge of
such facts, the complainant must prove them; ^ and where
a party seeks to avoid the effect of a promise made by him

1 Haley v. Lacey, 1 Sawn., 408 (1852),

RULE 7.] THE rRESUMPTIOX OF KNOWLEDGE. 23

on the ground that he was is^norant of material facts the
burden is on him to show this.^ >

RULE G. — The burden of proof of notice to a bona fide
purchaser is on the person allcgiu{? such notice.

Illustrations.

I. P. employs V. as agent to build a vessel for him, furnishes him with
funds therefor, but instructs him to conceal his, P.'s, ownership. V.
makes the contracts in his own name, and registers the vessel as his own.
"When it is completed he sells it to C. and pockets the purchase-money. In
an action by P. against C. the burden of proving that C. had notice of P. 's
rights is upon P.*

RULE 7. — There is no presumption that a person not
called as a witness has any knowledge of facts.

Illustrations.

I. In an action at law, one B., whose name is mentioned by witnesses In
the cause of the trial, is not produced as a witness. The jury have no
right to presume any thing as to his knowledge of any facts important to
the case.'

In case I. it was said : *' The circumstance that a particu-
lar person who is equally within the control of both parties
is not called as a witness is too often made the subject of
comment before the jury. Such a fact lays no ground for
any presumption against either party. If the witness would
aid either party, such party would probably produce him.
As He is not produced the jury have no right to presume
anything in respect to his knowledge of any facts in the
case, because they are to try the case upon the facts shown
in evidence, and upon them alone, without attempting to
guess at what might bo shown, if particular persons were
produced by the parties."

> Burton r. Blin, 23 Vt. 152 (1851).

» Calais Steamboat Co. r. Van Pelt, 2 Black, 273 (1862J

« Scovill V. Baldwin, 27 Conn. 317 (1S58).

itf ■

PART 11.

THE PRESUMPTIONS OF REGULARITY
AND INNOCENCE.

(25)

I

CIIAPTEE II.

THE REGULARITY OF JUDICIAL ACTS.

RULE 8. — Where a court having general jurisdiction acts
in a case, its jurisdiction to so act will be presumed.^

Illiistrations.

I. In a suit in a court of chancery, a grant of administration by a pro-
bate court was objucttd to a.s invalid. Tlie order of this court granting
letters of administration did not show tliat the decedent died intestate,
or that his last residence was in the county in which the grant was made.
These requisites to the jurisdiction of the court will be presumed.-

Li case I. it was said: " Our courts of probate are not
inferior in the technical sense of that term, as used of
the subject at common law, nor is this jurisdiction special
and limited; on the contrary it is general, original, and
exclusive. In the exercise of such a jurisdiction, these
courts are entitled to the presumption that what they do is
rightly done and on just grounds."

RULE 9. — But where the proceedings are taken by
an inferior court (A), or are under a special author-
ity granted to any tribunal in a special case or for
special purposes (B), or are not according to the course
of the common law (C), the jurisdiction is not pre-
sumed but must be shown.'

Nothing shall be intended to be out of the jurisdiction of

1 Maikel v. Evans, 47 Ini. 326 (IS74) ; Butcher v. Bank of Brownesville, 2 K.is. 80
(18fi:5) ; State v. Levvis, '21 N. J. (L.) 5(!l (1S4S) ; Railway Co. v. Uumsay. 2-2 Wall. 3"22
(1S74; ; Palmer V. Oakley, 2 Doug. (Mich ) 47; 47 Am. Dec. 1 (1S47) ; Horner v. State
r.k., 1 Ind. 130; 4S Am. Dec. 355 (l&tS) ; Mechanics', etc., Bk. f. Union Bank, 22 Wall.
276 (1874) ; Davis v. Hudson, 29 Minn. 28 (ISSl) ; Reed v. Vanphan, 15 Mo. 141 (18.51) ;
Hays V. Ford, 55 Ind. 52 (1876) ; llahu v. Kelly, 34 Cal. 400 (1868) ; Wallace r. Cox, 71
111.518(1874).

- Rrien ti. Ilart, 6 Humph. i:U (1845) ; and see Kilciease r. Blythe, 6 Id. 379
(1S45).

^ Thatcherr. Powell, 6 Wheat. 127; Kempe r. Kennedy, 5 Cranch, 173; Jackson v.
Xew Milford Briiigo Co., .-54 Conn. 266 (lsfi7) ; Pclton f. Palmer, 13 Ohio, 209 (1846) i
Goulding v. Clark, 34 X. II. 143 (1856) ; Palmer v. Oakley, ante.

(27)

28 PEESUaiPTIVE EVIDEXCE. [rULE 0.

a superior court, but that which specially appears to bo so,
and nothing will be presumed to be withiii the jurisdiction
of inferior courts, but that which is expressly alleged.^ " It
is a general rule," said Wightman, J., <' that all judicial acts
exercised by persons whose judical authority is limited as
to locality must appear to be done within the locality to
which the authority is limited." ^

"It is undoubtedly true," say the Supreme Court of the
United States in Galpin v. Page,^ " that a superior court of
general jurisdiction, proceeding within the general scope of
its powers, is presumed to act rightly ; all intendments of law
in such cases are in favor of its acts. It is presumed to
have jurisdiction to give the judgments it renders until the
contrary appears ; and this presumption embraces jurisdic-
tion not only of the cause or subject-matter of the action in
which the judgment is given, but of the parties also. The
former will generally appear from the character of the
judgment, and will be determined by the law creating the
court or prescribing its general powers. The latter should
regularly appear by evidence in the record of service of
process upon the defendant or his appearance in the action.
But when the former exists the latter will be presumed.
This is familiar law and is asserted by all the adjudged cases.
The rale is different with respect to courts of special and
limited authority; as to them there is no presumption of
law in favor of their jurisdiction ; that must affirmatively
appear by sufficient evidence or proper averment in the
record, or their judgments will be deemed void on their
face."

1 Peacock v. Bell, 1 Saund. 74.

2 R V. Totness, 11 (J. 15. 80 (1849); Dempster v. Parnell, 4 Scott, N. R. 30 (1S41);
King V. Fell, 1 Bald. 3S6 (1S30) ; Swain v. Chase, 12Cal. 283 (1859) ; Bosworth v. Van-
dewalker, 53 N. Y. 597 (1873) ; Spear v. Carter, 1 Mich. 19; 48 Am. Dec. 683 (1817) ;
McClure v. Hill, 36 Ark. 273 (1880) ; Keep v. Grannis, 3 Nev. .548 (1867). In R. v. GourhCi
2 Salk. 441, the Court of King's Bench ruled that the jurisdiction of magistrates
would be presumed until the contrary was shown. A different conclusion was
reached inR. r. Helling, 1 Strange, 7, decided in 1780. The latter ruling was affirmed
by Lord Kcnyon in King v. Inliabitants of Hulcott, G T. li. 585, in the year 17'JU, after
a review of all tiie earlier authorities.

« 18 Wall. 364 (1873).

RULE D.] lIEGULAniTV OF JUDICIAL ACTS. 29

Tho meaning of " inferior court " in the above rule, is
not, as will have been observed from tiie language just
(juoted, tho broad meaning wiiieh (his phrase sometimes
bears. By an " inferior court," is meant one with only
Imiitcd jurisdiction ; a court with general jurisdiction is not
an " inferior court " within the rule, because an appeal may
lie from its decision to a higher tribunal. In the appellate
court the presumi)tion always is that the court from which
the ai)pcal is taUen has not erred, and this presumption
must be removed by proof before the court will reverse the
proceedings below. ^ "A revisory court never presumes
that an inferior tribunal has erred. The presumption is
that it has not. Until the contrary is shown by recoixl
every court is presumed to have acted and decided cor-
rectly." ^ As superior courts within rule I. are included,
all courts of the common law and created by statute having
general common-law jurisdiction; also a court Palatine of a
county,^ a court of chanceiy,'* court of probate,^ a county
court in Illinois.® On the other hand these are inferior
courts within the rule, viz. : a justice of the pcace,^ a mag-
istrate whose authority is restricted by locality,^ a county
court in Iowa.*

In a Connecticut case'" it is said : " If by a court of gen-
eral jurisdiction is meant one of unlimited powers, then we
have none such in this State nor do we know of any else-
where. And if by d court of limited jurisdiction is meant
one whose powers are subordinate to some other court, then
all but courts of denier resort are of this character. Such
is not the sense in Avhich this subject has been understood

1 State V. Farish, 23 Miss. 4S3 (18,'i2).

« Wagers V. Dickey, 17 Ohio, 4:;u (1813) ; Coil v. Willis, 18 /d. 28 (1840).
» Peacock v. r.ell, 1 Sauiul. 74.

* Hopiierr. Fisher, 2 Head, 2j8 (ISriS) ; Kilcrease v. Blrthe, 6 Humph. 379 (1845).
6 Bricn v. Hart, 6 Ilumiih. 131 (1S45) ; Ueilmoud r. Andersou, 18 Ark. 449 (18.57).
e People f. Cole, 84 III. .327 (lS7fi).

' Swain V. Chase, 12 Cal. 283 (1859) ; Van Eltten v. Jilson, C Id. 19; Whitewell r.
Barbour, 7 Id.Q^.

8 II. V. Totness,!! Q. B.80 (1849) ; R. v. Bloomsbury, 4 El. & B. 520 (lSo4).
« County of Mills r. Ilaniaker, 11 Iowa, 206 (18C0).
i** Fox V. Hoyt, 12 Couu. 491 ; 31 Am. Dec. 763 (1838).

30 PRESUMPTIVE EVIDENCE. [rULE 9.

either in England or in this country. ^Yo think that a court
of record proceeding according to the common hi w of the
hind, and whose judgments maybe revised by writ of error
is a court whose proceedings and judgments impart verity
and until reversed will protect all who obey them, and in
this respect there is in this State no distinction between
courts of justices of the peace and the county and superior
courts. In this sense the courts of common pleas of Kew
Jersey, Massachusetts, Vermont and Ohio have been con-
sidered as courts of general jurisdiction.^ Between all
these courts and mere special tribunals, such as commis-
sioners on insolvent estates, committees, military tribunals
and many others which are not courts of record and are
established for some special and perhaps temporary pur-
pose, there exists a very marked distinction in regard to
the credit and sanction to which their proceedings are
entitled and the immunities which may be claimed by
themselves, and such as act under them."

Illustratio7is.

I. A statute gives justices of llie peace power to talvo the examination
of a soldier quartered in tlie place wliere tlie examination is talven. Au
examination of a soldier taken before two magistrates is offered in evi-
dence, but it does not show where the soldier was quartered at the time.
There is no presumption that he was quartered at the place where the
examination was taken, and it is admissible.^

" The rule," said Holroyd, J., in case I., " that in infe-
rior courts and proceedings by magistrates, the maxim
omnia prcesiimuntur 7'ite esse acta docs not apply to give
jurisdiction has never been questioned. Here then the
jurisdiction should at all events have appeared on the face

1 Citing Kempe v. Kennedy, 5 Cranch, 173; Wheeler v. Raymond, 8 Cow. 311 ; Har-
rod V. Karretto, 1 Hall, 155; Watkin'sCase, 3 Pet. 103; Voorhces r. U. S. Bank, 10 Pet.
474; Hettsr. P.agley, 13 Pick. 672; Foot v. Stevens, 17 Wend. 483; Watson v. Watson,
9 Conn. 144 ; Uall r Ilowd, 10 Conn. 514.

2 King V. Inhabitants of All Saints. 7 B. & C. 783 (1S2S).

RULE 9.] REGULARIXr OF JUDICIAL ACTS. 31

of the examination, supposing proof of it aliunde not to
have been necessary."

B.

I. A statute gives to county courts power to order the sale or parti-
tion of real estate of an intestate where tlie heirs can not agree upon a
division or one of tliera is a minor. Under this law a county court par-
titions certain land. Its act is attaclced. There is no presumption
that everything necessary to the validity of the judicial act has l;een doue.^

II. A statute provides that a magistrate shell have power to call a
meeting of a corporation upon the petition of three or more proprietors
owning one-twentieth of a property. There is no presumption that such
a meeting called by a magistrate was done on the petition of such pro-
prietors.

III. By the law of New Jersey the acknowledgment of a deed of lands
lying in the State can be taken in another State, only where the grantor
whose acknowledgment is taken resides in such State, A deed of lands
in New Jersey is acknowledged before a commissioner in New York.
There is no presumption that the grantor resided at the time in New
York.s

IV. The Board of Aldermen of a city are constituted by statute a court
for the purpose of trying a city officer on charges preferred. The statute
requires the aldermen to be duly sworn as such court. In a proceeding
to set aside their finding, there is no presumption that they were sworn.*

In case I. it was said : *' It is an important question in
this cause whether the proceedings of this court upon apeti-
tion to divide the real estate of an intestate under the act be
proceedings under a special authority delegated to this court
in a particular case or whether they be proceedings under
its general and ordinary jurisdiction, as a court of law or a
court of equity. If the latter be the case, many things may
be presumed which do not appear on the record nor in the
evidence produced ; nor will evidence be permitted to con-
tradict the presumption arising from the acts of the court as
they appear upon the record. Thus, after a court has

1 Tolmie V. Thomp.«on, 3 Cranch C. C. 123 (1827).

2 Goulding r. (^laik, .'U X. H. 143 (1S5G).

a Graluuu r. Wliitel.v, 2G X. J. (L.) 2i;i (1S5T).
* Tompcrt v. Lithgow, 1 Bush, 176 (ISCC).

32 PRESU3IPTIVE EVIDENCE. [hULE 9.

ordered a sale in the exercise of its general and ordinary
jurisdiction, it would be presumed that the court had satis-
factory evidence of every prerequisite to justify the court
in making the order, and such presumption would continue
so lono-as the order of the court should remain unreversed.
On the contrary, if the proceedings be under a special
authority delegated to this court in a particular case and not
under its general jurisdiction as a court of common law or
of equity, nothing material can be presumed. The person
claiming title under such proceedings must show them to be
regular, and in which the court had jurisdiction and was
authorized to do what was done. By the Maryland Act of
Descents, the chancellor has original jurisdiction only in the
case where the lands to be divided lie in different counties.
If the land lie entirely in one county, the county court
alone has jurisdiction of the case. This court, therefore,
can exercise jurisdiction in the present case only as being
substituted for the county court. It is a special jurisdic-
tion given to a court of law in a particular case."

" There is no presumption," it was said in case II., *' in
favor of the jurisdiction of inferior courts or magistrates,
or persons vested with special powers ; but their authority
must be shown."

In case III. it was said: " It is insisted, however, that
the presumption of law is that the officer acted correctly,
and within the scope of his authority. The principle
undoubtedly prevails as applied to judicial proceedings in
courts of general jurisdiction; but the maxim, omnia
proesumuntur rite esse acta, does not apply so as to give
jurisdiction to magistrates, and to persons exercising a
special, limited, or mere statutory authority."

In case IV. it was said: " The Board of Aldermen could
only become a court to try charges preferred against a city
officer upon being duly sworn ; and being a court of the
most limited juri.-^diction — Indeed having jurisdiction as a
court only for the purpose of the trial and removal of offi-

RULE 9.] REGULARITY OF JUDICIAL ACTS. 33

cer3 — everything essential ti) make it such a court must
appear affirmatively, and no intendment or presumption in
its favor can be indul<Ted."

I. By a State statute service of process by publication is substituted in
place of personal citation in proceedings ajjainst persons witliout tiie
State. That tlie statute has been strictly followed must be proved, and
no presuraptiou of jurisdiction will be indulged in.^

♦' When the special powers conferred," it is said in case
I., '< are brought into action according to the course of the
common law, i.e., in the usual form of common law and
chancery proceedings, by regular process and personal
service, where a personal judgineut or decree is asked, or
by seizure or attachment of the property where a judgment
in rem is sought, the same presumption of jurisdiction will
usually attend the judgments of the court as in cases falling
within its general powers.^ But where the special powers
conferred are exercised in a special manner, not according
to the course of the common law, or where the general
powers of the court are exercised over a class not within
its ordinary jurisdiction, upon the performance of pre-
scribed conditions, no such presumption of jurisdiction will
attend the judgment of the court. The facts essential to the
exercise of the special jurisdiction must appear in such
cases upon the record. The extent of the special jurisdic-
tion, and the conditions of its exercise over subjects or
persons necessarily depend upon the terms in which the
jurisdiction is granted, and not upon the rank of the court
upon which it is conferred. Such jurisdiction is not there-
fore the less to be strictly pursued, because the same court
may possess over other subjects or other persons a more
extended and general jurisdiction."

1 Galpin V. Page, 18 Wall. 364 (1ST3) ; Jordan v. Goblin, 13 Gal. 100; Ricketson v.
Richardson, 26 Id. 149; McMinn r. Whelan, 27 Jd. 300; Morse v. Presby, 25 X. II. au-2;
Com. v. Blood, 97 Mass. 53S (1S67) ; Gray r. Larrimorc, 4 Sawy 63S (1S07) ; Cofleld v.
McOlellanrt, 16 Wall. 3;U (1S72).

« Ilarvcy v. Tyler, 2 Wall. 332.

3

34: PRESU3IPTIVE EVIDENCE. [rULE 10.

RrXiE 10. — The regularity of the proceedings of courts
of general powers is presumed (A), and so of the
proceedings of inferior courts, jurisdiction being once
showTi to exist (B.)^

The maxim omnia prcesumuntur rite esse acta finds, per-
haps, its best application in sustaining the validity of judi-
cial proceedings. They are presumed to be regular.^ So

1 Merritt v. Baldwin, 6 Wis. 439 (1858) ; Outlaw v. Davis, 27 111. 467 (1861) ; Tharp
V. Com., 3 Mete. (Ky.) 411 (1861) ; Cora. v. Bolkom, 3 Pick. 281 (1825) ; Davis v. Stale,
17 Ala. 354 (1850;) State v. Farish, 23 Miss. 483 (1852) ; McGrews v. McGrews, 1 St. &
r. 30 (1831).

2 Brown v. Connelly, 21 Ark. 140 (1840) ; Seegee v. Thomas, 3 Blatchf. Ill (IS.'iS) ;
Sanford v. Sanford, 28 Conn. 6 (1859); Sidwell v. Worthinglon, 8 Dana, 74 (1839);
Brown v. Gill, 49 Ga. 549 (1873); Hudson v. Messick, 1 Houst. 275 (18.-^5); Tibbs v.
Allen, 27 111. 119 (1862) ; Moore v. Neil, 39 III. 2,56 (1866) ; Rosenthal v. Renick, 44 Id.
202 (1867) ; Owen v. State, 25 Ind. 371 (1865) ; Keelyt'. Garner, 13 Jd.400 (1859) ; Morgan
V. State, 12 Id. 449 (1859) ; McNorton v. Akers, 24 la. 369 (1868) ; Sumner v. Cook, 12
Kas. 162 (1873) ; Letcher v. Kennedy, 3 J. J. Marsh. 701 (1830) ; Sprague v. Litherbcrry,
4 McLean, 412 (1848) ; Reynolds v. Nelson, 41 Miss. 83 (1866) ; Apthorp v. North, 14
Mass. 167 (1817) ; Com. v. Balkom, 3 Pick. 281 (1825) ; McGrews «. McGrews, 1 St. & P.
30 (1831) ; Callison v. Autry, 4 Tex. .371 (1849) ; Smith v. Sprague, 4 Vt. 43 (1867) ; Reedy
V. Scott, 23 Wall. 3.52 (1S74) ; Florentine v. Barton, 2 Id. 210 (1804) ; Cofleld v. McClel-
land, 16 Id. 331 (1872) ; Addington v. Allen, 11 Wend. 374 (1833) ; Foot v. Stevens, 17
Id. 486; Erwin v. Lowry, 7 How. 181 ; Voorhees v. Bank of United States, 10 Pet. 449;
Kingr. Lyme Regis, 1 Dougl. 159 (1779) ; Caunce v. Rigby, 3 M. & W. 68 (1837) ; James
v. Ileward, 2 G. & Dav. 264 (1842) ; Parsons v. Lloyd, 3 Wils. 341 (1772) ; Jackson v.
Astor, 1 Pinney, 137; 39 Am. Dec. 231 (1841) ; Shaefer v. Gates, 2 B. Mon. 453; 38 Am.
Dec. 164 (1842) ; Seechrist v. Baskin, 7 W. & S. 403 ; 42 Am. Dec. 251 (1844) ; Homer v.
State Bk., supra; Carter v Jones, 5 Ired. (Eq.) 196; 49 Am. Dec. 424 (184S) ; Parker
V. Boston, ctc.R. Co.,3Cush. 107; 50 Am. Dec. 709 (1849) ; Armstrongs. Mudd, 10 B.
Mon. 144; 50 Am. Dec. 545 (1849); Sever v. Russell, 4, Cush. 513; 50 Am. Dec. 811
(1849). A mass of decisions in the different courts throughout the country affirm
this principle. They are grouped hereunder according to States for convenience of
reference: Alabama — Leavltt v. Smith, 14 Ala. 279 (1848). That charge was jus-
tified by the evidence. Morris v. State, 25 Ala. 57 (1854). That court below
acted properly. Moore w. Briggs, 14 Ala. 700 (1848) ; Chamberlain v. Darrington, 4
Port. (Ala.) 515 (1837); Castleberry v. Pearce, 2 Stew. & P. 14 (1832). Evidence
rejected below will be presumed to have been properly rejected. Ilolleman v.
DeNyse, 51 Ala. 95 (1874) ; Blair v. Chapman, 62 Ala. 58 (1878) ; Baker v. Prewett, 64
Ala. .'551 (1879). Judgment presumed to be.regular (Falkner i). Christian, 51 Ala. 495
(1874) ) even where the proceedings are summary. Shouse v. Lawrence, 51 Ala. 560
(1874). The refusalof a charge by the lower court which is not shown to be in writing
as required by statute, will be presumed to have been refused because not in writing.
Green v. State, 66 Ala. 40 (1880) . Arkansas — Hale v. Warner, 36 Ark. 221 (1880) ; Jones
V. Graham, 36 Ark. 383 (1830) ; Dean v. State, 37 Ark. 59 (1881) ; Pounders v. State, 37
Ark. 399 (1881) ; State v. Nichols, 33 Ark. 5.50 (1882) ; St. Louis, etc., R. Co. v. Murphy,
28 Ark. 4.56 (1382) ; Casteel v. Casteel, 38 Ark. 477 (1882) ; Willson v. Light, 4 Ark. 158
(1842) ; BizzcU v. Williams, 8 Ark. 138 (1847). That jury was properly sworn below.
State V. Gibson, 21 Ark. 140 (1800). California — Parker v. Altschul, 60 Cal. 380
(1882) ; Roe r. Superior Court, 60 Cal. 93 (1332) ; Meredith i;. Santa Clara Mining Co.,
60 Cal. 617 (1882) ; Parnell v. Ilaahn, 61 Cal. 131 (1832) ; Onesti v. Frcelon, 61 Cal. 625
41682) ; People v. Fuqua, 61 Cal. 377 (1882) ; Montgomery v. Merrill, 62 Cal. 386 (18S2) ;

RULE 10.] REGULARITY OF JUDICIAL ACTS. 35

too after verdict a court of review will assume that the
necessary facts to sustain it were proved.^

Hastings v. Cunningham. 35 Cal. 549 (1S581 ; Moyes v. Griffith, 35 Cal. 6.'i6 (18&9) ;
Garrison v. McGlockley, 38 Cal. 78 (18G;>) ; Mahoiiey t'. Middleton, 41 Cal. 41 (1871);
Morris t). Anglo, 42 Cal. 23G (1871) ; Wilson v. Dougherty, 45 Cal. 34 (1872) ; Brown f.
Kcntfleld, 50 Cal. 129 (1875). That person was present when verdict was rendered.
People V. Stuart, 4 Cal. 218 (18J4). That evidence warranted verdict or judgment.
Doll V. Anderson, 27 Cal. 243 (1SG5) ; Folsom v. Hoot, 1 Cal. 374 (1851) ; IJult v. Davis, 1
Cal. 134 (1850) ; Kilburn v. Uitchic, 2 Cal. 145 (1S.J2) ; Grewell v. Henderson, 7 Cal. 200'
(1857) ; Nelson r. Lemmon, 10 Cal. 49 (1858) ; Hentsch v. Porter, 10 Cal. 6.'j5 (1858);
Brooks V. Douglass, 32 Cal. 209 (1SG7) ; Scars v. Dixon, 33 Cal. 32G (1807) ; Wallhridge
t'. Ellsworth, 44 Cal. 353 (1872). Colorado — That grand jury was properly impan-
eled. Wilson r. People, 3 Col. 325 (I.S77). That verdict was in proper form. Christ
V. People, 3 Col. 394 (1877). Florida — Reed v. State, Story v. State, 16 Fla. 064
(1878) ; Miller r. Kingsbury, 8 Fla. 356 (IS-W). Georfiria — Tyler Cotton Press Co. v.
Chevelier, 56 Ga. 404 (187G) ; Endres v. Lloyd, 5G Ga. 647 (1870) ; Tabb v. Collier, 63
Ga. 641 (1882) ; Shands v. Howell, 28 Ga. 222 (1859) ; Anderson v. State, 42 Ga. 9 (1871) ;
Kcrwick v. Steelinan, 44 Ga. 197 (1871); Deupree v. Deupree, 45 Ga. 414 (1872);
McKee v. McKee, 48 Ga. 332 (1873) ; Morris v. Ogles, 56 Ga. 592 (1875) ; Bryson v.
Chisholm, 56 Ga. 596 (1875) ; Laramorc r. Mclvenzie, 60 Gu. 533 (187S) ; Hudgins v.
State, 61 Ga. 182 (1678) ; Langston v. Marks, 68 Ga. 435 (1882) ; McMichacl v. Hardee,
68 Ga. 831 (1832). The charge of the court below is not on the record. The presump-
tion is that the court charged the law correctly. Spears v. State, 50 Ga. 252 (1874) ;
Lackey v. Bostwick, 64 Ga. 45 (1875) ; Jordan v. Ingram, 67 Ga. 92 (1876) ; Eppuig v.
Tunstall, 57 Ga. 267 (1876) ; Mobile Fire Ina. Co. v. Miller, 58 Ga. 420 (1877) ; Madden
V. State, 53 Ga. 563 (1877) ; Burge v. State, 02 Ga. 170 (1879) ; Hunt v. Pond, 67 Ga. 578
(1881); Sims v. State, 08 Ga. 486 (1882). Illinois — Kern v. Strasberger, 71 111. 303
(1874) ; Hermann v. Pardridge, 79 111. 471 (1S7.j) ; People v. Gray, 72 111. 343 (1874) ;
Corbus V. Tweed, 09 111. 205 (1873) ; Barnelt v. Wolf. 70 111. 76 (1873) ; Bush v. Harrison,

70 111. 480 (1873) ; Maxcy v. Williamson Co. 72 111. 206 (1874) ; Jones v. Neeley, 72 111.
449 (1874) ; St. Louis, etc., R. Co. v. Wbeelis, 72 111. 538 (1874) ; Choate v. Hathaway, 73
111.519 (1374); Shattuck v. People, 5 111.478 (1843); Reed v. Phillips, 5 111.43 (lSt2) ;
Glancy V. Elliott, 14 111. 456 (1853) ; Dukes v. Rowley, 24 111. 210 (1800) ; Scott v. White,

71 111. 287 (1874) ; Harris v. Lester, 80 111. 308 (1875) ; Merchants, Dispatch Trans. Co.
V. Joesting, 89 111. 152 (1878) ; Brennan v. Shinkle, 69 111. 604 (1878) ; Carr v. Miner, 92
111. 604 (1879) ; Augustine v. Doud, 1 111. (App.) 588 (1878) ; Tompkins v. Mann, 6 111.
(App.) 171 (18,S0) ; Fuller v. Bates, 6 111. (App.) 442 (18S0) ; Peoiile v. Ilessing, 28 111.
410(1862). That court below disregarded incompetent evidence. Ritter r. Schcnk,
101 111. 387 (1882); Fisher v. Chicago, etc., R. Co. 104 III. 323 (1882). That bill of
exception shows the correct facts. Eastman r. People, 93 111. 112 (1879). Indiana —
Harvey v. Laflin, 2 Ind. 478 (1851) ; Cory v. Silcox.O Ind. 39 (1854) ; Houston f. Hous-
ton. 4 Ind. 139 (1853) ; Tam v. Shaw, 10 Ind. 469 (1858) ; Ilolloway v. State, 53 Ind. 5.54
(1876); State V. Stcinmeier, 64 Ind. 87 (1878); Salander v. Lockwood, 06 Ind. 285
(1879) ; Hood v. Pearson, 07 Ind. 303 (1879) ; Ross v. Misner, 3 Rlackf. 302 (l.'<;!4) ; Bee-
man V. State, 6 Blackf. 105 (1839) ; State v. Beackmo, 8 Elackf. 240 (1840) , Kichols i;.

i Dobson V. Campbell, 1 Sumn. 319 (1833) ; Minor v. Mechanics' Bank, 1 Pet. 46
(1828) ; Bastard c. Trutch, 3 Ad. & Ell. 451 (18:15) ; R. v. Whiston, 4 Id. 007 (18:;0) ; R.
*'. Whitney, 5 Id. 191 (1S;56) ; R. r. Long Buckley, 7 East, 45 (1800) ; Lee r. Johnstone,
L. R. 1 H. L. Sc. 420 (1809); Reed v. Jackson, 1 East, 355 (1801); Uamsbotlom r.
l;uckhurst,2 M. & S. 567 (1813) ; R. r. Carlisle, 2 B. A Ad. 307 (18.31) ; Jackson v
Pcsked, 1 M. & S. 237; Spiers v. Parker, 1 T. K. 141 (1576 ; Davis v. Black, 1 Q. B 911
(1841) ; Harris v. Gondwyn, 2 M. & Gr. 405; Gladthorpe r. Hardnian, 13 M. & W. oll
(1841) ; Smith v. Keating, 0 C. B. 136 (1848) ; Kidgillr. Moor, 9 Id. 3C4 (1850) ; Delamcie
r. Queen, L. R. 2 II. L.419 (18G7) ; R. v. Waters, 1 Den. C. C. 356; R. v. Bowen, 13 Q.
B. 790 (1349) ; UiDbs v. Pike, 9 M. & W. 351 (1342).

36 PEESmiPTIVE EVIDENCE. [RULE 10.

On the same principle the regularity of the proceedings
of a military court/ and the correctness of acts of legislative
bodies ^ are presumed.

■\ToodruflF; 6 Blackf. 439 (1847). As that the grand jury was properly impaneled.
Long V. State, 46 Ind. 583 (1874). Iowa — County of Mills v. Hamaker, 11 Iowa, 203
(1S()0) ; Pursley v. Hays, 17 Iowa, 310 (1SG4) ; Caudill v. Tharp, 1 G. Greene, 94 (1S48) ;
Saum V. Jones Co., 1 G. Greene, 165 (1S48) ; Rowan v. Lamb, 4 G. Greene, 468 (1854) ;
Henry v. Evans, 58 Iowa, 560 (1882). The record being silent, the Supreme Court will
presume that the jury in a criminal trial when they retired to consider their verdict,
were in charge of a sworn ofllcer; State v. Pitts, 11 Iowa, 343 (1860) ; also that they
were admonished by the judge as required by law, as to their duty when separating.
State V. Sliellady, 8 Iowa, 477 (1850). Kansas — Mickel v. Hicks, 10 Kas. 578 (1878) ;
Commrs. of Brown Co. v. Roberts, 22 Kas. 702 (1S79) ; Murray v. Kelley, 23 Kas. 606
(ISSO). "In the absence of any evidence to the contrary, the presumption would be,
that a judgment entered in vacation was valid, according to the laws of Illinois."
Dodge V. Coffin, 15 Kas. 280 (1875) ; Ward r. Baker, 16 Kas. 31 (1876) ; Ilaynes v. Cowen,
15 Kas. 277, 637 (1875). Kentucky — Young v. Dorsey, 2 Lilt. 202 (1822) ; Chrisman r.
Gregory, 4B. Mon. 474 (1844). Louisiana — Bank of Alabama v. Livingston, 2 La.
Ann. 915 (1847) ; Gentile V. Foley, 3 La. Ann. 146 (1848). Maine — Bangor v. Bruns-
wick, 30 Me. 398 (1840) ; Bullen v. Arnold, 31 Me. 583 (1850). Michigan — That court
below acted on sufficient evidence Wood v. Lake Shore R. Co. ,49 Mich. 370 (1882;)
and disregarded Incompetent evidence, Cuming v. Grand Rapids, 46 Mich. 150
(18S1) ; Keables v. Christie, 47 Mich. 594 (1882) ; Mawich v. Elsey, 47 Mich. 10 (1881) ;
or otherwise proceeded properly. Maxwell v. Deens, 46 Mich. 35 (1881) ; Brown v.
Haak, 48 Mich. 229 (1882) ; Facey v. Fuller, 13 Mich. 527 (1865). Jury is presumed to be
intelligent enough to understand judge's charge. Hart v. Newton, 48 Mich. 401 (1882).
Minnesota — That court below acted properly or on sufficient evidence. Butler
r. Winona Mill Co., 28 Minn. 205 (1881) ; Jones v. Wilder, 28 Minn. 239 (1881) ; State v.
Brown, 12 Minn. 538 (1867). Mississippi — That court below acted properly, or on
sufficient evidence. Hightower v. State, 58 Miss. 636 (1881) ; Guice r. State, 60 Miss-
714 (1882) ; Taggart v. Muse, 60 Miss. 870 (1SS2) ; Smith v. State, 58 Miss. 867 (1881) ;
Dyson f. State, 26 Miss. 302 (1853) ; Carter v. Blanton,33Mis8. 291 (1857). Missouri —
Appleby v. Brock, 76 Mo. 315 (1882) ; Belkin v. Rhodes, 76 Mo. 643 (1882) ; Johnson v.
Long, 72 Mo. 210 (1880) ; State v. Brown, 75 Mo. 317 (1882) ; Walthar v. Warner, 26 Mo.
143 (1858). Nebraska— Hansen v. Bergquist, 9 Neb. 269 (1879) ; State National Bk.
V. Scofleld, 9 Neb. 499 (1880) ; Davenport Plow Co. v. Mewls, 10 Neb. 317 (1880)
Nevada — Nosier v. Hayncs, 2 Nev. 53 (1866); Champion v. Sessions, 2 Nev. 271
(18GG) ; Mitchell v. Bromberger, 2 Nev. 345 (1866) ; Virgin r. Brubaker, 4 Nev. 31
(1SC8) ; State v. Stanley, 4 Nev. 71 (18C8) ; Lady Bryan Gold, etc., Co. v. Lady Bryan
Mining Co., 4 Nev. 414 (1868) ; Flanncry v. Anderson, 4 Nev. 438 (1868) ; Re Stickworth,
7 Nev. 223 (1872). New Jersey — Coxc v. Field, 13 N. J. (L.) 215 (1832). New
York— Barnard v. IIcydrick,49 Barb. 62 (1S66). Ohio — Merchant «•. North, 10 Ohio
St. 251 (18.59); Sheehan v. Davis, 17 Ohio St. 571 (1867); Hemmingway v. Davis, 24
Ohio St. 150 (1873). Pennsylvania — Fife v. Com., 29 Pa. St. 429 (1857). Texas —
Frosh V. Holmes, 8 Tex. '29 (I8.')2) ; Hillebrant v. Burton, 17 Tex. 138 (18.56) : Castancdo
t'. State, 7Tex. (App.) 584 (1880) ; Davis v. State, 6 Tex. (App.) 197 (1879). Virginia —
Ayres v. Robins, 30 Gratt. (Va.) 105 (1878). West Virginia— Garrison v. Myers, 12
W. Va. 330 (1878) ; Paxton v. Rucker, 15 W. Va. 547 (1879). Wisconsin — Abbott v.
Johnson, 47 Wis. 239 (1S79) ; Knowlton v. Culver, 1 Chand. (Wis.) 214 (1849). United
States — U. S. v. White, 5 Cranch C. C. 73 (1836) ; Young v. Ridenbaugh, 3 Dill. 23.
(1875) ; Sprague v. Litterberry, 4 McLean, 442 (1848).

1 Slade V. Minor, 2 Cranch C. C. 1.39 (1817).

« Gosset V. Howard, 10 Q. B. 441 (1845) ; Garrett v. Dillsbury R. Co., 78 Pa. St. 467
(1875) ; Cochran v. Arnold, 58 Id. 399 (1868) ; Wickham v. Page, 49 Mo. 527 (1872)

RULE 10.] REGULARITY OF JUDICIAL ACTS. 37

Ulustratwns.
A.

I. The record of a probate court shows the regular appointment of an
administrator, and that on a subscciuont day it was ordered tliut "the
resii^nation be " received and recorded, and that letters dc bonis non were
on the same day granted to another. In a collateral proceeding involv-
ing the validity of the latter's appointment, it will be presumed that the
resignation recorded was of the office of administrator, and that it was
in writing as required by statute.^

II. The record of an action upon a penal bond states that the "jury
were sworn as required by law." The presumption is, that they were
sworn " to inquire into the truth of the breaches and assess the damages "
as to a party in default, and to " try the issues and assess the damages "
as to those who have appeared, as the statute requires.*

III. Lands of an infant are sold in pursuance of a decree of a circuit
court. On a bill llled to set aside the sale, the record shows that process
was ordered against the infants, and at the following term a guardian «(Z
litem appointed. The presumption is that they were regularly brought
into court.*

IV. A statute requires that on a sale for taxes the purchaser shall give
a bond to be approved by the court; otherwise the acknowledgment of
the deed will be invalid. In a proceeding to set aside a tax sale it will
bo presumed that the bond on file was approved by the court.*

V. A., in an action of book account, presents to the court certain
matters for adjustment and a'lowance, which were passed upon by a ref-
eree and his report is accepted by the court. B. sues A. on two pi'omis-
sory notes to which A. pleads payment. His evidence shows that they
were the same matters as have been presented before the court. The
presumption is that the referee's decision was made ou the merits and
was a final settlement.^

VI. In the Supreme Court in a criminal case, the record does not show
whether the charge of the judge was in writing, as required by law, or
oral. The presumption is that it was the former.*

VII. B. being convicted of rape, on appeal to the Supreme Court the
record shows that the jury were "duly sworn." The law requires that
they shall be sworn to "well and duly try and true deliverance make,"
etc. The presumption is that the proper oath was administered.^

1 Gray v. Cruise, 3fi Ala. 55!1 (18G0).

2 State V. Gibson, 21 Ark. 140 (1S60).

8 Brackeuridge v. Dawson, 7 Ind. :!S3 (18.56).
* Cromelein v. Brink, 29 Pa. St. 522 (1853).
6 Stearns r. Stearns, .■?2 Vt. 678 (ISCO).
0 People V. Garcia, 25 Cal. 5:il (18fi4).
' Beale v. Com., 25 Pu. St. 11 U855).

38 PRESUl^rPTIVE EVIDENCE. [rULE 10.

VITI. In an appellate court the record states a verdict for the plaintiff
on twelve counts, and that the jury were discharged on eight others. It
is objected that there is nothing to show that the jury have been dis-
charged with the consent of the parties. This will be presumed to have
been the case.i

IX. A court affirms the report of a sale made by a master under a
decree of foreclosure. The presumption is that the evidence was suffi-
cient to warrant a confirmation. ^

X. An appeal bond is executed by an attorney in fact. The presump-
tion is that the court had evidence of his authority to do so.^

XI. An order of sale does not on its face appear to have been granted
on the application of the administrator, as required by law. This in
another proceeding will be presumed.*

XII. A statute empowers a court to call special terms. A record
recites that the court convened in pursuance of the order of the judire
heretofore made. The presumption is that the special term was in con-
formity with the statute. 5

XIII. One judge tries a case in the place of another. The reason for
the change does not appear. The presumption is that it is for a reason
mentioned in the statute allowing such changes.^

XIV. The record does not show who presided at the trial below. The
presumption is that the judge rightly authorized by law did.^

XV. It does not appear in a record whether a certain juror was sworn
on the trial. The presumption is that he was.''

XVI. An objection to a question is sustained by the court, but the
witness, nevertheless, proceeds to answer it. The presumption is that
the jury disregarded the answer.

XVII. A supreme court has power to appoint school directors when
vacancies occur. The record of the court shows it appointed certain
school directors, but does not show that vacancies existed at the time.
This will be presumed.^"

XVIII. A record on appeal states that the issue was tried by "a jury
of good and lawful men." Only eleven names are set out. The court
will presume that there were twelve jurors."

1 Powell V. Sonnett, 3 Bing. 381 (1826).

2 Moore v. Titman, .33 III. 358 (1864).

3 Illinois Cent. R. Co. v. Johnson, 40 111. 35 (1864)
* Lay V. Lawson, 23 Ala. 377 (1853) .

6 Cook V. Skelton, 20 111. 107 (1858).
« People V. Mellon, 40 Cal. 648 (1871).
' People V, Woodside, 72 111. 407 (1874).
« Peoiile V. Darr, 61 Cal. 538 (1882.)
» People V. Hall, 57 Cal. 569 (1881).
1" Pierce v. Edington, .38 Ark. l.-iO (1881).
n Foote v. Lawrence, 1 Stew (Ala.) 483 (1828)

I

RULE 10.] REGULARITY OF JUDICIAL ACTS. 39

XIX. In the Supreme Court the record does not show that the person
was present when the order for his execution was made. It is conceded
that he had this right. The presumption is that it was accorded him.^

XX. Parties appeal from a decree rendered on final hearing " on the
original and amended bills, with the exliibits thereto, decrees pro con-
fesso against the parties who had not appeared and pleaded, and the
agreement of counsel." The agreement is not set out in the record.
The court will presume that it justified the decree rendered.'

XXI. The record on appeal in a murder case recites that the jury
" were duly sworn according to law." The presumption is that the cor-
rect oath was administered.*

The Supreme Court will not presume that the Di. strict
Court received documents in evidence not properly stamped
as required by the United States law.* From delivery of
letters of administration it is presumed that oath required of
the administrator was taken. ^ Proof that certain lost writs
were issued by the proper oflficer raises a presumption that
they were sufficient as to form and seal.® Where a cause is
on trial at twelve o'clock on the night of the last day of the
term, it will be assumed that the term did not close until
that time.' A modification of judgment made by the court
after verdict will be presumed to have been made on the
statutory grounds.*^ It will be presumed that an order
directing a sheriff to sell property of a succession was regu-
larly issued.* AVhere the law requires that the bond given

1 People V. Sing Linn, 61 Cal. 538 (18S2). Missouri cases contra.

- Collins V. Loyal, 56 Ala. 403 (1876) ; and .*ee Hearn v. Stale, 6'2 Ala. 218 (1878).

3 Mitchell V. State, 58 Ala. 417 (1877). " The sum of our decisions on the question
of error in swearing the jury is that the correct oath will he ))resumed to have been
administered when It api)ears that the jury was sworn, unless it also appears that
one suhstantially different or defective was administered. Walker v. State, 49 Ala.
^70; McCallcr v. State, 49 Ala. 40; Crist v. State, 21 Ala. 149; Blair t'. State, 52 Ala.
344; De Bardelaban v. State, 50 Ala. 180; Moore v. State, 52 Ala. 424; Bush v. Stale
52 Ala. 13; McNeill v. State, 47 Ala. 503; Edwards v. State, 49 Ala. 334; McGuire v.
State, 37 Ala. 161. The cases of Johnson v. State, 47 Ala. 31 ; Smith r. State, 47 Ala.
545; Smith v. State, 53 Ala. 486, and Murphey v. State, 54 Ala. 178, being contrary to
the decisions in the cases sitpra are overruled."

* Towne i'. Bossier, 19 La. Ann. 102 (I8C7).

6 Brooks V. Walker, 3 La. Ann. 150 (1848).

« McXorton v. Akers, 24 la. 369 (1868).

' Morgan v. State, 12 Ind. 449 (1859).

8 Sumner r. Cook, 12 Kas. 162 (1873).

» Ue Wadsworth, 2 La. Ann. 966 (1874).

40 PRESUMPTIVE EVIDENCE. [rULE 10.

by an administrator before the sale of the real estate of his
intestate shall be approved in writing by the judge of pro-
bate, the presumption is that this was done.^ So as to duties
of the register of court before sale.^ It will be presumed
that the court below did " strict justice " to the parties as
required by statute.^ In a collateral proceeding it will not
be presumed that service was made by an officer of the court
outside of the county.* A letter of guardianship in due
form will be presumed to have been regularly issued.^ The
presumption is that evidence admitted by a justice of the
peace is legal evidence ; the party alleging error must prove
it.® A docket entry showing that the jury were " sworn
according to law," the presumption is that they were regu-
larly sworn. ^ Where, after an order for a change of venue,
the parties appear and litigate the case in the same court to
final judgment, the presumption is that the change of venue is
waived.^ A judgment by default entered on the first day of
a term is presumed to be entered while the court is in ses-
sion and on due proof of the noii-appearance of the defend-
ant.^ Where a writ is duly returned it will be presumed
that it was duly served.^'' The law presumes that proper
care is taken of official records and files ;^^ that copies of
papers used in the court below were proper copies. ^^ "Upon
the common presumptions in favor of every judicial tri-
bunal, acting within its jurisdiction, we must suppose that
all persons concerned had due notice." ^^ Where judgment
is shown the presumption is that the summons was served

1 Austin V. Austin, 50 Me. 74 (1802).

2 Vincent t'. Eaves, 1 Mete. 247 (1S58).

3 Grinstead v. Foote, 26 Miss. 4T6 (ISSS).
* state V. Williamson, 57 Mo. 192 (1874).

6 Vandcrveere v. Gaston, 25 N. J. L. 615 (1856).

« Smi-h V. Williamson, 11 X. J. L. 313 (1830).

^ Williamson v. Fox, 38 Pa. St. 214 (1801).

8 Frosh V. Holmes, S Tex. 20 (1852) ; Doty v. State, 6 Blackf. 629 (1843).

» Bunker v. Hand, 19 Wis. 254 (1805).
1'' Drake v. Duvcnick, 45 Cal. 455 (1873).
n nice V. Cunningham, 29 Cal. 492 (1806).
■12 Morris v. Ogle, 50 Ga. 502 (1870).
13 Brown v. Wood, 17 Mass. 08 (1820).

RULE 10.] KEGULARITY OF JUDICIAL ACTS. 41

on the dcfemlant as required by law.^ "Where documentary
evidence used in the court below has been lost, everything
is to be presumed to have been contained in them to support
the opinion of the court.'' But injury is presumed from
evidence erroneously admitted.''

In case IV. it was said: " If any presumption of law be
reasonable, it is that which favors the rcfrularity of judicial
proceedings until something else appears; and the greater
the tendency to irregularity, the greater the necessity for
violence of presumption against it. This is all that saves
our records. The bond required in this case was given.
The court ought to have approved it. Without such action
the acknowledgment of the deed was improper; and before
convicting the judges of impropriety, some evidence is
needed. The absence of any note of approval is insuffi-
cient. The letter of the law did not require it, and the
omission was an informality which can not upturn the whole
proceeding."

In case V. it was said : "To support the plea of payment
the plaintiff gave evidence of certain matters which he
claimed to have applied as payment, which he had previ-
ously presented before tl>e auditor for allowance in his
action on book against the defendant, and which were passed
upon by the auditor. It appears from the bill of exceptions
that the report of the auditor was accepted by the court.
The claim of the plaintiff here is that there was no testi-
mony tending to show that the matters he claimed before
the auditor were either allowed or rejected upon their
merits; and as they might have been disallowed on some
mere technical point, the plaintiff should be allowed to have
them apply as payment, unless the defendant shows affirma-
tively that the decision of the auditor was upon their merits.
But we think that i\\Q- prima facie presumption of law is to
the contrary, viz. : that where a question is brought before

1 Ray V. Rowley, 4 Thomp. & C. 43; 1 lluu, 614 (1874).
- Carroll v. Peake, 1 Pet. 13 (1828).
» Grimes v. Fall, 15 Cal. 63 (1S60).

42 rHESUMPTIVE EVIDENCE. [llULE 10.

a judicial tribunal, havino; jurisdiction of the matter, and
is there decided, the decision is presumed to be upon the
merits of the controversy and to be a final settlement of it.
The contrary, if claimed, must be made to appear by due
proof. Public policy requires this presumption, that there
may be an end to litigation ; and experience shows that in
the ordinary administration of justice the fact corresponds
with the legal presumption."

In case VII. it was said : " Because the law enjoined an
oath in the form I have stated, and because the record says
the jury were sworn, we are bound to presume that they
were sworn in that form. * * * "\Ye are brought by an
inspection of the record and the application of the appro-
priate legal maxim to the conclusion that the oath actually
administered was the very oath the law furnished for the
occasion. We are not to expect too much from records of
judicial proceedings. They are memorials of the judgments
and decrees of the judges, and contain a general, but not a
particular, detail of all that occurs before them. If we
should insist upon finding every fact fully recorded which
must occur before a citizen must be punished for an offense
against the laws, we should destroy public justice and give
unbridled license to crime. Much must be left to intend-
ment and presumption, for it is often less difficult to do
things correctly than to describe them correctly. This
record is unusually full ; its fullness, indeed, is the source
of the defections urged against it; and yet it does not tell
us how the defendant was tried, whether in the course of
common-law trials by jury, or in some of the various other
modes that have been known in the world. Is the judgment
to be reversed for that reason? By no means. We intend
that the trial was by jury and by witnesses confronting the
deceased, because the record certifies us of a trial, and we
know that a jury and witnesses are indispensable to a con-
stitutional and legal trial. In the same manner we infer the
presence of the jury throughout the trial, though the record
takes no notice of them from the 24th to the 27th of Octo-

RULE 10.] KEGULAUITY OF JUDICIAL ACTS. 43

bcr ; and that the testimony was delivered ore tenus, thon;ih
the names of the witnesses in the marjiin is all that is said
about witnesses."

In case XIX. it was said : *' It is claimed on the part of
the defendant that he was entitled to be present when the
order for his execution was made. So he was. But it does
not appear from the record that he was not present, and in
sujjport of the regularity of the proceedings of the court
below, the presumption is indulged that he was."

In case XX. it was said : " Shall the presumption be
made, if error is found in the record as it now stands, that
it was not cured and the decree authorized by the agree-
ment? Or shall the presumption be indulged that the court
conformed the decree to the agreement submitted to it, by
which the errors apparent on the record were waived ? It
is the last presumption which the unvarying practice of
this court compels us to indulge. Error must be shown
affirmatively, and all reasonable intendments consistent with
the record must be made in support of the decrees or judg-
ments of primary courts."

B.

I. A judgment is produced which was confessed before a justice of
the peace. The hiw required that the confession should be entered on
tie minutes of a docket and the judgment made thereon. The docket is
lost. The presumption is that the entry was properly made.^

II. It appearing that a probate court had jurisdiction to render a cer-
tain judgment, the question arises, whether all the proceedings were
regular. The presumption is that they were.*

III. On an application to a surrogate for an order to sell the real estate
of a decedent, the court appointed a guardian for the infant heirs. The
question subsequently arose whether tliis had been done within the time
required by statute. The presumption was that it had.^

IV. The terms of a police court were by law daily for the transaction
of criminal business and on certain specifled days for civil business.
The record of a criminal case in such court showed only that the trial

1 .Sheer V. B.ank of Pittsburg, 16 How. B71 (1853).
s State r. Ilinchm.-vn. 27 I'a. St. 479 (1856).
» Sheldon v. Wright, 7 Barb. 39 (1849).

44" PRESUMrriYE evidence. [rule 10.

took pla^e on a day named. The presumption was that the court was
then engaged in the transaction of criminal business. i

111 case II. it was said : " From all this it appears, first,
that the Probate Court had jurisdiction to render the judg-
ment sued on. The costs accrued in a proceeding in a civil
case. And this appearing upon an inquiry which we are
bound to institute, it matters not that the probate court
ranks as an inferior tribunal, and not as one of those supe-
rior courts who exercise a common-law jurisdiction, and
whose acts and judgments are conclusive in themselves;
for the strictness with which the proceedings of inferior
tribunals are scrutinized only applies to the question of
jurisdiction, and when the existence of that is proved and
conceded, the maxim omnia rite acta applies to them as well
as to courts of general jurisdiction."

"Upon the whole," said Wells, J., in case III., "I am
prepared to hold at this point in the case, that the ordinary
presumption that a public officer has done his duty should
apply. I do not think that such a presumption alone should
ever be allowed to sustain a vital jurisdictional fact, such as
I regard this to be ; but, inasmuch as the fact that a guard-
ian was appointed is made out independently, and without
the aid of such presumption, as the question is only as to
the time when it Avas done, and as the proof shows that it
might have been done in proper time, the law will presume
that the appointment was made the requisite time before the
parties in interest were by the order to show cause."

In case IV. it was said : "A court was required by law
to be held on that day for criininal business. It is to be
presumed that such a court was held in obedience to the
requirement; and as this case was within the jurisdiction of
such a court, and as the record recites that it was heard and
adjudged in the police court of Haverhill on that day, it is
to be presumed that it was then engaged in the transaction
of criminal business. It was tried at a time when the court
should have been, and, we presume, was in session for that
purpose."

1 Com. V. Brown, 123 Mass. 410 (1877).

RULE 11.] REGULARITY OF JUDICIAL ACTS.

45

RULE 11. — Jurisdiction of the person beyond the ter-
ritorial limits of a court of general powers can not
be presumed.

*' The presumptions indulged in support of the judgments
of superior courts of general jurisdiction arc also limited
to jurisdiction over persons within their territorial limits,
l)crs()ns who can be reached by their process. * * *
The tribunals of one State have no jurisdiction over the
persons of other States, unless found within their terri-
torial limits; they can not extend their process into other
States, and any attempt of the kind would be treated in
every other forum as an act of usurpation without any
binding efficacy.^ * * # "Whenever, therefore, it
appears from the inspection of the record of a court
of general jurisdiction that the defendant against whom
a personal decree of judgment is rendered, was at the
time of the alleged service without the territorial limits
of the court, and thus beyond the reach of its process,
and that he never appeared in the action, the presumption
of jurisdiction over his person ceases, and the burden of
establishing the jurisdiction is cast upon the party who
invokes the benefit or protection of the judgment or
decree." ^

I In Picquet v. Swan, 5 Mason, 40, Mr. Justice Story said: "The courts of a
State, however general may be their jurisdiction, are necessarily confined to the
territorial limits of the State. Their process can not be executed beyond thos-e
limits; and any attempt to act upon persons or things beyond them would be deemed
a usurpation of foreign sovereignty not justified or acknowledged by tl.e law of
nations. Even the Court of King's liench in England, though a court of general
jurisdiction, never imagined that it could serve proce-ss iu Scotland, Ireland, or the
colouics, to compel an appearance or justify a judgment aprainst persons residing
therein at the commencement of the suit. This results from the general principle
that a court created within and for a jiarticular territory Is bounded in the exercise
of its powers by the limits of such territory. It matters not whether it be a
kingdom, a .state, a county, or a city or other local district. If it be the former
it is necessarily bounded and limited by the sovereignty of the government itself,
which can not be extra-territorial; if the latter, then the judicial interpretation
is that the sovereign haa chosen to assign this tpecial limit, short of his general
authority."

« Galpin v. Pago, IS Wall. 364 C1S731.

46 PRESUMPTIVE EVIDENCE. [rULE 12.

RUIjE 12 . — And a presumption can not contradict
facts averred or proved.

" They have no place for consideration when the evidence
is disclosed or the averment is made. When, therefore, the
record states the evidence or makes an averment with
reference to a jurisdictional fact, it will be understood to
speak the truth on that point, and it will not be presumed
that there was other or different evidence respectinoj the
facts or that the fact was otherwise than as averred. If for
example, it appears from the return of the officer or the
proof of service contained in the record that the summons
vv^as served at a particular place, and there is no averment
of any other service, it will not be presumed that service
was also made at another and different place; or if it
appears in like manner that the service was made upon a
person other than the defendant, it will not be presumed,
in the silence of the record, that it was made upon the
defendant also. Were not this so, it would never be possi-
ble to attack collaterally the judgment of a superior court,
although a want of jurisdiction might be apparent upon
its face; the answer to the attack would always be, that
notwithstanding the evidence or the averment, the necessary
facts to support the judgment are presumed." ^

1 Galpinr. Page, 18 Wall. 364 (1873).

i

CHAPTER III.

THE REGULARITY OF OFFICLIL ACTS.

RULE 13. — The presumption is that one who is
proved to have acted in an oflQcial capacity possessed
the necessary and proper autliority.^

This presumption is a necessary one to shield the acts of
an officer de facto until the courts have decided the ques-
tion— if it should come before them — as to his right and
title to the office. Thus, in aKansas case, the commissioners

' The application of tiiis rule is found in very many cases, involving different
powers and duties — as that he was regularly appointed (Eaton r. White, 18 Wis. 518
(1SG4 ;) or elected as required by law. Hathaway v. Addison, 48 Me. 440 (18G0). See
Cooper V. Moore, 44 Miss. 3S6 (1870); Butler v. Ford,l Cr. & M. 6G3 (1833). In re
Murphy, 8 C. & P. 310 (1837), Coleridge, J., said: " With regard to the last objection
these trustees are pubic ofllcers. They all acted as such before the signing of this
rate, and I can not say that there is no evidence that they are trustees. If the proof
of their once acting is not enough, would proof of ten times be so? Where is the
line to be drawn? I think it is evidence to go to the jury that they were trustees."
James v. Brown, 5 B. & Aid. 243 (1821^ ; R. v. Jones, 2 Camp. 131 (1809) ; Mechanics',
etc., lik. V. Union Dk., 22 Wall. 276 (1874). " The rule that secondary evidence shall
not be admitted where primary evidence is attainable, although a sound general
rule, has been relaxed in some cases where general convenience has required the
relaxation. The character of a public officer is one of those cases. That he has
acted notoriously as a public officer has been deemed prima facie evidence of hia
character, without producing his commission or appointment." Jacob v. United
States, 1 Brock. 523 (1821). " We do not inquire whether the marshal had fully
proved that he had conformed to all the directions of the law; that was required
before he entered on the duties of his office ; for having shown his commission and
also his recognition as marshal Vy the Federal courts, we presume that he has in
other respects conformed to the law, so far as conformity is essential to the offering
of bis commission." Kilpatrick v. Frost, 2 Grant's Gas. 190 (1SJ8) ; Jay v. Carthage,
48 Me. 353 (18G0) ; Ilamlin r. Dungman, 5 Lans. 61 (1871) ; Briggs v. Taylor, 35 Vt. 57
(1SC2) ; Fay v. Richmond, 43 Id. 25 (1870) ; Wilcox v. Smith, 5 Wend. 231 (18.50) ; Salter
f. Applegate,23>'. J. (L.) 115 (1851) ; Druse v. Wheeler, 22 Mich. 439 (1871) ; Shelby-
ville Trustees v. Town of Shelbyville, 1 Mete. (Ky.) 54 (1858) ; Landry r. Martin, 15
La. 1 (1840); Ex parte Strang, 21 Ohio St. 610 (1871); Brown r. Connelly, 5 Bhickf.
390 (1S40) ; Com. v. Fowler, 10 Mass. 290 (1813) ; State v. Perkins, 24 X. J. (L.) 409
(1851) ; Nelson v. People, 23 X. Y. 293 (18G1) ; State r. 11111,2 Speers, 150 (1843) ; People
r. Cook, 8 X. Y. 67 (1353) ; Swails v. State, 4 Ind. 517 (18.53) ; Woolsey r. Village of
Rnndout,4 Abb. App. Dec. 639 (1866); Delphi School District v. Murray, 53 Cal. 29
(1878) ; Golduer v. Bressler, 105 111. 420 (18S3).

(47)

48 PRESUMPTIVE EVIDEXCE. [llULE 13.

of a certain county paid to the county clerk de facto the
salary of the office. The title to the office was then in liti-
gation and the courts subsequently decided that another
person was the rightful incumbent. After taking possession
the latter brought suit against the commissioners for the
salary paid to the wrongful incumbent. But the court held
that the action did not lie, the payment to the officer de
facto having been proper,^ and said: *' Now as W. was an
officer de facto, holding under color of title, every person
had a right to recognize him, as a legal and valid officer
and to treat him as such. The public, Ihe county, the
county commissioners and private individuals had a right to
do business with him as an officer, and to pay him for his
services, if they chose, without taking any risk of having
to pay for such services a second time. It may be greatly
to the interest of the public or of the individuals doing busi-
ness with such officer to pay him when his fees or salary
become due, and should they not be allowed to consult the
interest of the public and their own interest to so pay
him? It is not their fault that he is wrongfully in posses-
sion of the office and how are they to know whether he is
in possession of the office rightfully or wrongfully? Are
they bound to know who is entitled to the office in advance
of any final adjudication of the question by the courts? Are
they bound to anticipate the decision of the courts ? And are
they bound to decide the question for themselves as it thus
comes up incidentally and collaterally in the payment of fees
or salary? And if they should determine that the courts
would eventually decide against the officer de facto, must they
refrain from paying him any fees or salary at perhaps a
great loss to themselves? In a Michigan case, Cooley, C. J.,
said: 'The public who have an interest in the continuous
discharge of official duty and whose necessities can not wait
the slow process of a litigation to try the title, have a right
to treat as valid the official acts of the incumbent, with whom

1 Commissioners of Saline Co. v. Anderson, 20 Kas. 29S; 27 Am. Rep. 171 (1873).

nULE 13.] IIEGULARITY OF OFFICIAL ACTS. 49

alone under the circumstances they can transact business.
This rule is an obvious and necessary one for the protection
of organized society for, as was said in Weeks v. Ellis, ^ the
affairs of society can not be carried on unless confidence were
reposed in the official acts of persons de facto in office.''*
And private individuals in controversies between themselves
are not permitted to question the acts of an officer de facto y
for the further reason that to do so would be to raise and
determine the title to his office in a controversy to
which he was not a party and in which he could not be
heard."

Illustrations.

I. In an action brought against A., as a lieutenant in the army of the
United States, it is proved that he has acted in that capacitj-. His
appointment and qualification to that office will be presumed.*

II. In an action of slander in his calling by B. against W., B. proves
that he has been employed as an attorney in several suits out of which
tlie cause of action arose. It is insisted that he can prove that he is an
attorney only by a copy of the roll of attorne3's. But from proof of his
acting as such the presumption arises that he has been duly enrolled.*

III. An action is brought by a vestry clerk of a parish, to which the
defendant pleads that the plaintiff is not a vestry clerk as alleged. Evi-
dence of his having acted as vestry clerk is heklpn'ma/acje evidence that
he has been appointed.^

IV. In an action of assault on H., while he was driving certain cattle
of M. to the pound, H. testifies that he has acted as pound-keeper to the
town for a number of years. The presumption is that he has been duly
appointed.*

V. It is required to justify an act that the defendant lias authority, as
collector of taxes. Proof that he acted as collector of taxes at the time
raises the presumption that he is such officer.'

1 2 Barb. 325.

2 Dcndit r. Auditors of Wayne Co., 20 Mirh. 176.
» Ilutchins r. Van IJokkclen, 31 Me. 126 (lSd2).

* Berryman v. Wise, 4 Term Hep. 366 (1791) ; Pcarcc r. Whale, 5 B. & C. 3S (1S26).
6 McGahey v. Alston, 2 M. & W. 206 (1S36).

• Com. V. McCue, 16 Gray, 226 (1S60) ; Briggs f. Taylor, 35 Vt. 57 (lt>C2) ; Druse f.
Wheeler, 22 Mich. 439 (1S71).

' State f. Roberts, 52 X. II. 492(1872); Ronkendorfr r. Taylor, 4 Pet. 319 (1830);
Tucker v. Aikcu, 7 X. U. 113 (1851) ; Faulkuer i-. Johnson, 11 M. & W. 5^1 (1843).

4

50 rRESUMPTIVE EVIDENCE. [kULE 13.

VI. la an action of ejectment the question arises Avhcther certain per-
sons are church wardens at a certain time. It being proved that they
acted as such at that time, the presumption arises that they hold the
offices. 1

VII. A statute empowers a master in chancery '* acting under appoint-
ment by the lord chancellor to be given for that purpose " to issue a liat
in bankruptcy. A fiat purporting to be issued by a master by virtue of such
authority is proved to have been issued. The master has often issued
similar flats. The presumption is that he has the necessary authority.

VIII. A statute provides that a person receiving enlisting money from
an officer or attested soldier shall be deemed to have enlisted as a soldier.
A. receives enlistiug money from B., who is proved to be a soldier. The
presumption is that B. is an " attested soldier" within the statute.^

IX. On an indictment for perjury before a surrogate in the ecclesiasti-
cal courts it appears that the oath has been administered by one Dr. P.,
who, it is proved, has acted as surrogate. This is prima facie evidence of
his having been duly appointed and having authority to administer the
oath.*

X. R. is indicted for embezzling a letter, he being an officer of the
post-office. Proof that R. acted as an officer of the post-office is prima
facie sufficient.^

XI. A municipal corporation is sued for services for which the trust-
ees had issued a certificate of indebtedness. The certificate is pro-
duced, signed by the parties as trustees. The presumption is that they
were such officers.*

XII. An affidavit to a bill for injunction in Maryland is made before
a notary of the District of Columbia. The presumption is that he has
power to take the affidavit.'

XIII. A. appears in court, or commences an action as attorney for B.
The presumption is that A. had authority from B.**

In easel, it was saidthat the evidence introduced (viz., that
A. had performed certain acts as lieutenant), must be deemed

1 Bowley v. r>arnes, 8 Q. B. 1037 (1846).

» Marshall v. Toms, 5 Q. B. 115 (181.3).

3 Walton V. Gavm, 16 Q. B. 48 (1850).

* Rex V. Verelst, .3 Camp. 432 (1813). So held of a commissioner for taking afll-
davits in R. v. IlowarJ, 1 Moo. & Rob. 187 (1832).

« R. V. Rees, 6 C. & P. C06 (1831).

« Woolsey v. Village of Rondout, 4 Abb. App. Dec. 630 (18GC).

;' Conollyt;. Riley, 25 Md. 402 (1866).

8 Osborn v. U. S. Bank, 9 AVheat. 738; McAlexander v. Wright, 3 T. B. Mon. ISO;
Briflgoton v. Bennett, 23 Mo. 420 ; Penobscot Boon Co. v. Lamson, 16 Me. 221 ; Field
V. Proprietors, 1 Cush. 11 ; Gaul v. Grout, 1 Cow. 113; Rogers v. Park, 4 Ilum^h. 480;
ReynoMs v. Fleming, SO Kas. 106 (1SS3) ; Leslie v. Fisher, 62 111. 118; Tally v.
Eeyuolds, 1 Ark. 99; Aaderson v. Sutton, 2 Duv. 480 (1866).

RULE 13.] REGULARITY OF OFFICIAL ACTS. 51

sufficient to sliow that he Avas a lieutenant de facto and that
he was duly qualitied by taking the oath required by law,
" such appointment and qualification arc presumed from the
acts done, and this presumption will remain until it is
removed by other evidence."

In case II., Buller, J., said that " in the case of all peace
officers, justices of the peace, constables, etc., it was suffi-
cient to show that they acted in these characters, without
producing their appointments, and that even in the case of
murder. The excise and custom-house officers indeed fall
under a different consideration, but even in those cases evi-
dence was admitted both in criminal and civil suits to show
that the party was a reputed officer prior to 11 Geo. 3, chap.
30. In actions brought by attorneys for their fees, the
proof now insisted on has never been required. Neither in
actions for tithes is it necessary for the incumbent to prove
presentation, institution, and induction ; proof that he
received the tithes and acted as the incumbent is suffi-
cient."

"The plaintiff," said Baron Parke, in case III., "is a
public parochial officer; and the rule is that all public offi-
cers who are proved to have acted as such, are presumed to
have been duly appointed to the office until the contrary is
shown."

In case VI. Patteson, J., said: " It is a recognized prin-
ciple that a person acting in the capacity of a public officer
is prima facie taken to be so. The fact does not of itself
prove any title, but only that the person fills the office."

"The same rule of evidence," said Patteson, J., in case
VII., " runs through all offices, from that of a judge to that
of a vestry clerk."

In case IX. Lord Ellenborough said: " I think the fact
of Dr. P. having acted as surrogate is sufficient jjr/ma /acee
evidence that he was duly appointed, and had competent
authority to administer the oath. I can not for this purpose
make any distinction between the ecclesiastical courts and
other jurisdictions. It is a general presumption of law

52 PKESOIPTIVE EYIDENCE. [rULE 13.

that ji person acting in public capacity is duly authorized
so to do."

In case XII. it was said: "The oath that the several
matters and things stated in the bill are true was adminis-
tered and duly authenticated by a notary public in the Dis-
trict of Columbia, and it is objected to for the reason that
this officer does not appear to have been authorized by law
to administer oaths in such cases. This objection is alto-
gether technical and foreign to the substantial equities dis-
closed by the bill, and of course must be disposed of by the
established rule applicable to such a state of case. All that
the court could require was that the statements of the bill
should be verified by an oath of one or both of the appellees,
administered by any person legally competent to perform
that office, and had the oath been administered by any notary
of this State its sufficiency could not have been questioned,
as that class of officers are expressly authorized by our laws
to administer such oaths. But here the oath was taken
before a notary of the district, in respect to whose legal
competency nothing appears on either side. The adminis-
tration of the oath and authentication of it by his notarial
seal, are, however, facts from which we should naturally
presume that these acts were done in the regular exercise of
powers conferred by the laws of the district."

In case XIII. it was said by Chief Justice Marshall :
*' Certain gentlemen, first licensed by the government, are
admitted by order of court, to stand at the bar with a gen-
eral capacity to represent all suitors. The appearance of
any one of these gentlemen, in a cause has always been
received as evidence of his authority, and no additional evi-
dence, so far as we are informed, has ever been required.
This practice, we believe, has existed from the first estab-
lishment of our courts, and no departure from it has been
made in those of any State or of the Union." In Man-
chester Bank v. Felloivs,^ the court say : " Formerly attor-

1 28 N. U. 304.

J

RULE U.] REGULARITY OF OFFICIAL ACTS. 53

neys were required to be appointed l)y warrant and to file
their powers in eourt, but that practice has long since been
disused, and a mere parol retainer is sufEcient. And where
an action is commenced by a regular responsible attorney,
the presumption is that it was done by due authority of the
plaintiff. It is not necessary to show authority whether a
suit be by an individual or a corporation, in order to the
purposes of the suit, unless it is called for by the defend-
ant." So, in Hardin v. Uo-Yo-Po-Nubby,^ it is said:
*'An attorney is an officer of the court and responsible to
the court for the propriety of his professional conduct and
the proper use of the privileges he has as such. No war-
rant of attorney is required by our laws or practice to
enable him to appear for and to represent a party in court.
He is permitted by almost universal practice in this country
to do so under verbal retainer, and it is only in cases of
clear want of authority or abuse of his privileges that he
is held to be incompetent to institute a suit or to represent
a party in court. The presumption is in favor of his
authority."

RULE 14. — The presumption is that public officers do
as tlie law and their duty requires theni.^

Illustrations.

I. The action is aajainst a carrier for two cases of cutlasses received,
to be transported from Euglaud to a foreign country. The defense is

1 27 Ml88. 567.

« McDonald v. Nelson, 2 Cow. 139; 14 Am. Dec. 43 (1823) ; Fan- v. Sims, Rich. Eq.
Oases, 122; 24 Am. Dec. 3'.)C (1832) ; Terry v. Bleight, 3 T. H. Mou. 270; IG Am. Dec.
101 (182G). Alabama— Uolleman v. De My.se, 51 Ala. 95 (1S74); State Auditor v.
Jackson County, 05 Ala. 142 (1880) ; Perry County v. R. Co., Id. 391 (18S0) ; Dudley v.
ChiltonCo.,06 Ala. 594 (1880); Harvey v. Thorpe, 28 Ala. 251 (185G) ; Brandon v. Snow,*,
2 Stew. (Ala.) 255 (1830). Arkansas— Uudd v. Bctlison, 21 Ark. 583 (1860). Cali-
fornia—Den V. Den, C Gal. 81 (ISoG) ; Egery v. Buchanan, 5 Cal. 53 (1855) ; Palmer
r. Baling, 8 Cal. 385 (1857i ; Curtis r. Ilernek, 14 Cal. 117 (1859) ; Hart r. Burnett, 15
Cal. 530 (1860); Guy v. Washburn, 23 Cal. Ill (18(^5); Ilagar v. Supervisors, 47 Cal.
222 (1874); Baldwin v. Bordheimer, 43 Cal. 433 (H74); Weaver v. Fairchild,50 Cal.
360 (1375) ; People v. Smith, 59 Cal. 3G5 (1881) ; Upham v. Hoskins, 62 Cal. 250 (1882).
But see Keane t'. Cannovan, 21 Cal. 291 (18C3). Connecticut — Booth v. Booth, 7
Conn. 350 (1829) ; West School Dist. v. Merrills, 12 Coun. 437 (183S) ; Cone v. City of

54 rRESUMrTi\'E evidence. [rule 14.

made that cutlasses are prohibited from being exported without a
license. It being proved that they wei*e eutered at the custom-house, the
license is presumed. ^

II. It is the duty of an officer to make certain entries in books. The
books with such entries signed with his name are produced. The pre-
sumption is that he made them.^

Hartford, 28 Conn. 363 (1S59). Florida — Dupuis v. Thompson, 16 Fla. 70 (1877).
Georgia — J efTerson v. Mayor, 7 Ua. 181 (181'.)); Craig r. Adair, 22 Ua. 373 (1857);
Pausch V. Guerrai-d, 67 Ga. 319 (1881) ; Roberts v. Cook, 68 Ga. 325 (1882) ; Healey v.
Dean, 68 Ga. 5U (1882). Illinois —Conwell v. Walkins, 71 111. 489 (1874) ; Gilbraith
V. Littiech, 73 Iil. 209 (1874) ; Garden City lus. Co. v. Stayart, 79 111. 259 (1875) ; Bal-
lance v. Underbill, 4 111. 453 (1842) ; Glancy v. Elliott, 14 111. 456 (1853) ; Buckmaster
V. Job, 15 111. 329 (1853) ; Dunlop v. Daugherty, 20 111. 397 (1858) ; Dyer r. Flint, 21 111.
SO (1859) ; Uives v. Kumler, 27 111. 291 (1802) ; Todemier v. Aspinwall, 43 III. 401
(1867) ; Rosenthal v. Renick, 44 111. 202 (1867). Indiana — Smith v. Stewart, 5 Ind,
220 (1854) ; State v. Carter, 6 Ind. 37 (1854) ; Culbertson v. Milhollin, 22 Ind. 362 (1864) ;
Feaster v. WoodHll, 23 Ind. 403 (1864) ; Jenkins v. Parkhill, 25 Ind. 473 (1865) ; City of
Logansport v. Wright, 25 Ind. 512 (1865) ; Miller v. Hays, 26 Ind. 380 (1866) ; Jackson
School Tp. V. Hadley, 59 Ind. 534 (1877) ; Ward v. State, 48 Ind. 290 (1874). Iowa-
Cobb V. Newcomb, 7 Iowa, 43 (1858) ; State v. Cress, 10 Iowa, 101 (1859) ; Dollarhide
V. Muscatine Co., 1 G. Greene. 158 (184S) ; Rowan v. Lamb, 4 G. Greene, 408 (1854).
Kentucky — Ellis v. Carr, 1 Bush, 527 (1866) ; Phelps v. Ratcliffe, 3 Bu.^h.334 (1867);
"Warfleld v. Brand, 13 Bush, 77 (1877) ; Buckner v. Bush, 1 Duv. 394 (1804) ; Hickman
r. Boffman, Ilardin, 349 (1808) ; Webber v. Webber, 1 Met. (Ky.) 18 (1858) ; Case v.
Colston, 1 Met. (Ky.) 145 (1858) ; Vincent v. Eaves, 1 Met. (Ky.) 248 (1858). Louis-
iana—Dunlap V. Sims, 2 La. Ann. 237 (1847) ; Hewitt v. Stephens, 5 La. Ann. 640
(1850) ; Re Lauve, 6 La. Ann. 5.30 (1851) ; City of Mew Orleans v. Gottschalk, 11 La.
Ann. 69 (1856); Waddell v. Judson, 12 La. Ann. 14 (1857); Nichols v. McCall, 13
La. Ann. 215 (1858); Webber i7. Gottschalk, 15 La. Ann. 370 (1860); Tempdeton v.
Morgan, 16 La. Ann. 438 (1862) ; City of New Orleans v. Halpin, 17 La. Ann. 185 (1865) ;
Ledoux V. Jamieson, 18 La. Ann. 130 (186C) ; O'llara v. Blood, 27 La. Ann. 57 (1875) ;
Tunstall v. Parish of Madison, 30 La. Ann. 471 (1878) ; Rayne v. Terrell, 33 La. Ann.
812 (1881). Massachusetts — Pratt v. Lamson, 6 Allen, 4.57 (1863); Blanchard v.
Young, 11 Cush. 341 (1853) ; Bruce v. Holdeu, 21 Pick. 187 (1839) ; Jones v. Aldermen,
104 Mass. 461 (1870) ; Gay v. Southworth, 113 Mass. 333 (1873); Clapp v. Thomas, 5
Allen, 158. Maine — Shorey v. Hussey, 32 Me. 579 (1851) ; Jones v. Fletcher, 41 Me.
254 (1856) ; Randall v. Bowden,48 Me. 37 (1860). But in County of Hancock v. Eastern
River Co., 20 Me. 72 (1841), it was said: " Where two are required to act, except in
certain cases, the law does not presume that the case contemplated exists, but the
contrary." Maryland — Wellersburg, etc., Co. r. Bruce, 6 Md. 457 (1854). Mich-
ig-an- Hourtienne v. Schnoor, 33 Mich. 274 (1876) ; Sui)ervisor.s of Houghton Co. v.
Roes, 34 Mich. 481 (1876); Perkins v. Nugent, 45 Mich. 156 (1881); Cooper v. Gran-
berry, 33 Mich. 117 (18.57) ; Jakway v. Lenison, 46 Mich. 521 (1881) ; First Nat. Bk. v.
St. Joseph, 46 Mich. 527 (1881). Minnesota — Goener v. Woll, 26 Minn. 154 (1879).
Mississippi — Wray v. Doe, 10 S. & M. 452 (1848); Dyson v. State, 26 Miss. 303
(1853) ; Nebbett v. Cunningham, 27 Miss. 292 (1854) ; Harris v. McKissack, 34 Miss.
170 (18.^7) ; Wright v. State, 50 Miss. 332 (1874) ; Waddell v. Magee, 53 Miss. 687 (1876).
Missouri — McNair v. Hunt, 5 Mo. 300 (1838) ; Trotter v. St. Louis Public Schools,
9 Mo. 69 (1845) ; Nolley v. Callaway County Court, 11 Mo. 447 (1848) ; Grayson v. Wed-
dle, G3 Mo. 523 (1876); Henry v. Dulle, 74 Bio. 413 (1881). Nebraska— Tecumseh
Town Site Case, 3 Neb. 284 (1874). New Hampshire — Wheelock v. Hall, 3 N. H.
310 (1825) ; Bias v. Badger, 6 N. H. 393 (1833) ; Wells v. Burbank, 17 N. H. 393 (1845) ;

1 Van Omeron v. Doweck, 2 Camp. 44 (1809).
> Taylor v. Cook, 8 Price, 653 (1820).

RULE 14.] REGULARITY OF OFFICIAL ACTS. 55

III. Tlie charter of a municipal corporation requires unanimity in the
mayor and counsel in passing an ordinance. An ordinance is allef;ed to
have been " duly made by tlie mayor and council." The pre&umptiou is
that It was made by a unanimous vote.^

IV. A statute requires the selectmen of a town to be elected by ballot.
The record does not show how they were elected. The presumption is
that they were elected by ballot.*

Thornton v. Oampton, 18 N. IT. 27 (1845) ; State v. Alstoad, 18 N. H. 59 (1846) ; Kim-
ball V. Lamprey, 1!) N. 11. 21.") (184S); S<-aminon v. Sc.immon, 28 N. H. 419 (1'n'j4) ;
Gordon r. Xorris, 29 N. II. 198 (ls.)4). New York — Supervisors of Livingston «.
White, 30 Barb. 72 (1S59) ; Atty.-Gen. v. Keformcd Protestant Dutch Church, 33
Barb. 303 (18G1) ; People v. PhcEnix Bk., 4 Bosw. 3G4 (1859) ; Arent v. Squire, 1 Daly,
347 (1SC:J) ; Wood v. Terry. 4 Lans. 80 (1871) ; Rector, etc., of Trinity Church v. Ilig-
gins, 4 Kobt. I (186G) ; Brewster r. Striker, 2 N. Y. 19 (184S) ; Leland v. Cameron, 31
N. Y. 115 (1865); People v. Snyder, 41 N. Y. 397 (1869); Smith v. Hill, 22 Barb. 6.56
(1856). North Carolina — State v. Lamon, 3 Hawks, 175 (1824) ; Uawls v. Deans, 4
Hawks, 299 (ISiC). Ohio— Ward r. Barrows, 2 Ohio St. 241 (1853). Oreg-on — Dcn-
nison v. Story, 1 Ores>'a, 272 (1S.")9) ; Dolph v. Barney, 5 Oregon, 191 (1874). Penn-
sylvania-Cuttle t'. Brockway, 24 Pa. St. 145 (1851) ; City of Alleghany i'. Kelson,
25 Pa. St. 332 (18.55) ; Lytle r. Colts, 27 Pa. St. 193 (185G) ; Iluzzard v. Trego, 35 Pa. St.
9 (1859) ; Kelly v. Creen, 53 Pa. St. 303 (ISGG) ; Lackawanna Iron Co. v. Falcs, 55 Pa.
St. 90 (18G7) ; Pittsburg r. Walter, 69 Pa. St. 3G5 (1871) ; Lccdom v. Lombaert, 80 Pa. St.
381 (187G). South Carolina — Ex parte Hanks, 1 Cheves (S.C.),20:? (1840) ; Boulw.ire
V. Witherspoon, 7 Uich. (Kq.) 450 (1855) ; Douglass v. Owens, 5 Rich. (L.) 534 (lvS52) ;
State V. Hatcher, 11 Ilicli. (L.) 525 (1S.)8) ; State v. Harden, 11 S. C. 3G0 (1878) ; Alston
V. Alston, 4 S. C. IIG (1872). Tennessee -Woods v. State, G Baxt. 426 (1873) ; Davis
V. State, 6 Baxt. 429 (1873) ; Webb r. Fritz, 8 Baxt. 218 (1874) ; Chapman v. Howard, 3
Lea, 3G3 (1879). Texas — Houston v. Perry, 3 Tex. 390 (1848); Linn v. Montross,5
Tex. 511 (1851) ; Edwards v. James, 7 Tex. (App.) 372 (1851) ; Porter v. Parker, 8 Tex.
23 (1852) ; Saunders v. Gilmer, 8 Tex. 295 (1852) ; Lee v. Wharton, 11 Tex. 61 (18,53) ;
Reid r. lleid. 11 Tex. 585 (1854) ; Sadler v. Anderson, 17 Tc.x. 248 (1S5G) ; Baker v.
Coe, 20 Tex. 429 (18.57) ; Jones v. Muisbach, 26 Tex. 2:55 (1862) ; AVillis v. Lewis, 28 Tex.
185 (1866) ; Farrar v. State, 5 Tex. (App.) 489 (1879) ; Prior v. State, Id. Vermont —
Drake v. Mooney, 31 Vt. 617 (1859); Stannard i'. Smith, 40 Vt.513 (1868). Virginia —
Com. V. Garth, 3 Call, 6 (1801) ; Davis v. Johnson, 3 Munf. 81 (1811) ; Paine v. Tut-
wiler, 27 Gratt. 440 (1876). Wisconsin — Gillett v. Gillett, 9 Wis. 194 (1859) ; Stan-
dish r. Flowers, 16 Wis. 110 (18C2) ; Williams v. Troop, 17 Wis. 463 (1863) ; Mills v.
Johnson, 17 Wis. 598 (18G:i) ; Edson v. Ilaydon, 18 Wis. 627 (1864) ; McCutchin v. Piatt,
22 Wis. 561 (1868); Lyon v. Green Bay, etc., R. Co., 42 Wis. 538 (1877). United
States — Russell v. Beebe, Hempst. 704 (1855); Johnson v. U. S., 14 Ct. of CI. 276
(1878) ; Danlop v. Munroe, 1 Cranch C. C. .537 (1809) ; U. S. v. Carberry, 2 Cranch C. C.
358 (1822); Winter t>. Simonton, 3 Cranch C. C. 104 (1827); Den v. Hill, McAll. 480
(1859) ; Ruggles v. Bucknor, 1 Paine, 358 (1824) ; The Eureka Case, 4 Sawy.302 (1877) ;
U. S. V. Earhart, 4 Sawy. 215 (1877) ; Wilkes v. Dinsnian, 7 How. 89 (1849) ; Minter t-.
CroTimelin, 18 How. 87 (1855) ; Delassus v. U. S. 9 Pet. 118 (1835) ; Strother i\ Lucas,
12 Pet. 410 (1838).

1 City of LMuisville r. Hyatt, 2 B. Mon. 180 (1841).

* Mussey r. White, 3 Mo. 200 (1825). That the acts of the ofTiccrs of a municipal
corporation ore pre^^umcd to be regular, see Bassett v. Pirtcr, lOCush.418 (1852);
Spurr V. Bartholomew, 2 Mete. 479 (1841). As that a proprietory meeting was con-
vened as required by law. Society f. Young, 2 N. II. 310 (1820) ; Copp r. Lamb, 12 Me-
312 (183.5); Inhabitants r. Root, 13 Pick. 318 (1S36) ; Cobleigh r. Young, 15 N'. 11. 493
(1844). And compare Clark v. Ward well, 65 Mo. 61 (1867).

56 PRESUJIPTIVE EVIDENCE. [rULE 14.

V. A petition iu baukruptcy is verifled b\' an affidavit sworn to before
the clerk of a Uuifed St'atea coui't. Such clerks are not authorized to
take affidavits out of court. The presumption is that the affidavit was
made in court. ^

VI. To entitle deeds to be read in evidence, they are required to be
acknowledged and recorded in a certain manner. A deed is produced
purporting to have been acknowledged before a justice of the peace. The
presumption is that the registrar of deeds who made the record had
sufficient evidence of the official character of the magistrate to entitle the
deed to be recorded.*

VII. It is proved that a sheriff sold certain land and executed a deed,
but it is not shown that he had previously levied on the land. This will
be presumed.^

VIII. An execution against C. Is delivered to a deputy sheriff in Decem-
ber, returnable the third Tuesday in February, In March, C. sells a pair
of horses which he had in his possession, when the execution was deliv-
ered and before the return day. Afterward the deputy sheriff sells the
horses at sheriff's sale under the execution. In an action by the
purchaser from C. it will be presumed that a levy has been made before
the return day.*

IX. The seal of a court of a foreign State is affixed to a paper by
impression without wax. The presumption is that the sealing is proper
according to the laws of the State. ^

X. A bill is filed to set aside a judgment entered against two defend-
ants by one of them who alleges that he was never sei'ved with process
in that suit. It appears that appearance was entered by some one. The
presumption is that it was entered by an attorney duly authorized.^

XI. On the walls of a town in the military occupation of an enemy
is posted a proclamation purporting to be signed by the general in
command. The presumption is that it was done by order of the
commander.''

XII. Under a statute an indenture of apprenticeship is not valid
unless notice has been given to certain officers by certain other officers.
An indenture being produced it will be presumed that the notice was
given. 8

1 Schermerhorn v. Talman, 14 N. Y. 93 (1856).

« Forsaith v. Clark, 21 N. II. 409 (1S50) ; Willis i-. Lewis. 28 Tex. 185 (1856) ; Titus v.
Kimbro, 8 /rf. 210 (18J2).

3 Juckson V. Shafer, 11 Johns. 317.

* Hartwell V. Root, 19 Johns. 348 (1822) ; 10 Am. Dec. 233 (1822).

6 Stale V. Lawson, 14 Ark. 114 (1853).

« Stubbs V. Leavitt, 30 Ala. 352 (1857).

' r.ruce V. Nicopulo, 11 Ex. 129 (1855).

8 Kuig V. Whiston, 4 Ad. & Ell. 607 (1836).

RULE 14.] IIEGULARITY OF OFFICIAL ACTS 57

XIII. Certain proceedings of a municipal corporation are allejrcd to
have talcon place at an adjourned meeting. Tiie presumption is tliut the
meeting was properly and regularly adjourned.*

XIV. A docket fee has been taxed by the officers of a court. Tiie pre-
sumption is that this was legal. ^

XV. The presumption is that a clerk issues an execution only under
the direction of some person authorized to control the writ.'

XVI. One of tlie witnesses to a deed is a magistrate. The presumption
is that he saw it legally executed.*

XVII. A return of service of a summons of an ofliccr is not dated.
The presumption is that it was served within the legal time.*

XVIII. The law requires that an administrator shall settle up an
estate within two years. The presumption, in a particular case, is that
a particular administrator has done so.*

XIX. A clerk In making a transcript of a record for the Supremo Court
copies therein a mortgage to which is appended a certificate of acknowl-
edgment purporting to have been made by a notary public. Opposite to
the signature at the end of the certificate, the copyist places a scrawl and
the word "seal." The presumption is th:it this was a representation of
the notary's official and not his private seal.''

XX. An execution is issued and placed in the hands of the sheriff, who
levies upon certain real estate. It is found several years afterwards in
the clerk's office. The presumption is that the sheriff returned it there
as required by law to do.®

XXI. There is no place of service mentioned in a constable's return.
The presumption is that it is within his precinct.^

XXII. A. is a public surveyor regularly appointed. The presumption
is that he has a knowledge of the art of surveying. ^^

XXIII. A party testifies that at the time of filing a mortgage for record
no other incumbrance on the property appeared on the books. The
recorder testifies that it did. The presumption is iu favor of the
recorder. 11

1 Freeholders v. State. 24 N. J. (L.) 718 (1853).
« Governor v. Rid^'way, 12 111. 14 (1850).
« Niantic Bankr. Dennis, 37 111. 381 (1S(>5).

* Durkiiis r. Moore, 17 Ga. 62 (1855) ; lliguflcld v. Phelps, 50 Ga. 59 (1874).
6 Ueid V. Jordon, 56 Ga. 282 (1876).
« Ingram v. Ingram, 4 Jones (L.), 188 (1S5C)
' Moore v. Titman. 33 111. 3.5S (1S64).
8 Conwell I'. Watkins, 71 III. 488 (1874).
» Richardson v. Smith, 1 Allen, 541 (1861).
1" Asho r. I.anham, 5 Iiul. 4:54 (1854).
n Vaudercock v. Baker, 48 Iowa, 193 (1878).

58 PEESU3IPTIVE EVIDENCE. [llULE 14.

XXIV. A. sues B., an examiner of title, for damages for failing to
show the fact of a judgment and sale of the land. The judgment and sale
are proved, but there is no proof that they were recorded. The presump-
tion is that the officers did their duty and recorded them.i

XXV. The law requires land sold upon execution to be first appraised.
Certain land is sold on an execution. The presumption is that it was
properly appraised.*

5;XVI. An executor makes oath that all legal taxes due by the deceased
have been paid by him since he qualitied as executor, but can not swear
as to taxes before the death of the testator. The presumption is that
they also have been paid.^

So a court will presume that the Legislature acted prop-
erly.* An act, for example, is found among the printed
laws bearing the approval of the Governor. The presump-
tion is that it was constitutionally passed.^ So verbal
changes were made in a constitution after it was reported by
the revising committee. These are presumed to have been
authorized.® Again, a statute gives a certain right of action
to children or their "legal representatives." In a subse-
quent code giving a similar action these words are omitted.
The presumption is that the Legislature intended to omit
these words,'' and generally a statute is presumed to be con-
stitutional,^ and so a municipal ordinance is presumed to be
regular.^

In a Georgia case the court say : " The next error alleged
was the admission of the exemplified copy of the will. It
came as a copy of a record from the ordinary's office of
Chatham County. It could not have got on record unless
it had been proven, and the presumption is that it was duly

1 Chase v. Heaney, 70 111. 263 (1873).

2 Mercer v. Doe, 6 Ind. 80 (1854) ; Evans w. Ashby, 22 Ind. 15 (1864), and see Banks
V. Bales, 16 Ind. 423 (1861) ; Piel v. Braycr, 30 Ind. 332 (1868).

a Aikin v. Altoona Iron Works, 43 Ga. 464 (1871).

* Supervisors of Schuyler Co. v. People, 25 111. 183 (1860) ; Illinois Cent. R. Co. v.
Wren, 43 111. 77 (1867).

t Bedard v. Hall, 44 111. 91 (1867).

« Walsh V. City Council, 67 Cia. 2!)3 (1881).

7 Miller V. Southwestern U. Co. ,55 Ga. 143 (1875).

8 South., etc.. K. Co. v. Morris, 65 Ala. 197 (1880) ; Sadler v. Langham, 34 Ala. 311;
Allison V. Thomas, 44 Ga. 640 (1872).

9 Van Uook v. City of Selina, 70 .\Ja. 361 (1331).

RULE li.] REGULARITY OF OFFICIAL ACTS. 59

admitted to probate." ^ " We must presume," it is said
in another case, " th;it all alterations or interlineations
made or appearing in a public record were done in a proper
manner by the person having tiio care and custody thereof,
or by some one in his office having authority so to do. In
other words, the mere fact that a change has been made,
in the absence of evidence showing the contrary, must be
presumed to have been done in a proper and legiti-
mate manner." ^ And in another, *' When notices, aflS-
davits, etc., are directed to be preserved in a given office,
a failure to find them there raises a presumption that no
such documents ever existed." ^

In another case it is said: ♦* We hold it to be a sound
principle, supported by both justice and reason that -svhcn
there is a power of appointment which has been exercised,
and there be a legal and an illegal mode of exercising it,
and the proof leaves it doubtful which has been used, the
legal presumption in favor of innocent purchasers or meri-
torious claimants is that it has been the legal one." *

In case I. Lord Ellenborough said that if it was proved
that these cutlasses were entered at the custom-house, he
would presume omnia rite acta.

*' We are of opinion," it was said in case III., " that the
order as exhibited should j9/*//;m facie be presumed to have
been made in the mode prescribed by the charter. As
functionaries acting openly for the welfare of the local pub-
lic and under official responsibility, the acts of the mayor
and counsel should in some deforce be accredited as reirular
and legal ; usurpation without an apparent motive should
not be presumed ; unanimity was indispensable to the legal
authority to make the order — the order was made by the
mayor and council and therefore upon the pleadings in
the case we feel authorized to presume that the order was

1 Thiirsby v. Mrcr9. 57 Ga. ISS (1870).

2 Hoininel v. Devinney, 31) ^Uch. ,V22 (187R).

» Hall t'. Kellngg, 16 Mich, r-f) ; irorrill v. Douglass, H Kas. 304 (1S75).
* Marshall v, Stevens, 8 Humph. 159 ; 47 Am. Dec. 601 (1847).

60 PRESUMPTIVE EVIDENCE. [RULE 14.

made by the unanimous vote of the mayor and councilmcn
in council."

In case XIII. it was said : " I am aware of no principle
which forbids us to act upon the presumption applicable to
courts of justice, and I think to public bodies intrusted
with general powers like these boards that the adjournment
was regularly made." So the law presumes that all officers
intrusted with the custody of public files and records will
perform their official duty by keeping them safely in their
offices. Where a paper is not found where, if in existence,
it ought to be deposited or recorded, the presumption,
therefore, arises that no such document has ever been in
existence ; until this presumption is rebutted it must stand
as proof of its non-existence.^

In case XXVI. it was said: '< The testator could not
swear to that fact for the obvious reason that he was dead.
The presumption,,however, is, in the absence of any evi-
dence to the contrary, that the testator when in life per-
formed all his legal and social duties, and therefore paid all
the legal taxes chargeable by law."

Sub-Rule 1. — And the presumption ill Hides 13 and 14
prevails as to the authority and acts of private officers.

Illustrations.

I. An act incorporating a bank requires the bonds of officers to be
approved by the board of directors. An action is brought on the bond
of a cashier of a bank. There is no record of its approval by the board.
This will be presumed.*

IT. An action is brought against the maker of a note made to a cor-
poration indorsed to the plaintiff " G. II. F., president." The presump-
tion is that the indorser had authority to make the indorsement. ^

III. Certain persons are proved to have acted as officers of a corpora-
tion. They are presumed to be rightly in office.*

1 Hall V. Kellogg, 16 Mich. 135 (1867) ; Piatt v. Stewart, 10 Id. 300.

2 P.aiik of the United States v. Dandridge, 12 Wheat. Gl (1827).

3 Cabot V. Given, i.5 Me. 144 (18r)S). And see Stevenson v. Hoy, 43 Pa. St. 191
(1862) ; Seeds v. Kahler, 76 Id. 203 (1874).

* Hilliard v. Gould, 34 N. H. 230 (1856).

RULE 14.] REGULARITl' OF OmCIAL ACTS. 61

IV. A complaint is filed in court in tlie n.'inie of a State and signed hv
certain attorneys. The presumption is that they had the authority of the
Governor to do so.*

v. A suit is brought in the name of a corporation. Its assent is pre-
sumed.*

VI. The seal of a corporation is afTixed to a contract produced. The
presumption is that this was done by authority.*

VII. B., who was superintendent of wharves, ordered the removal of
a brig from the plaintiff's wharf, where she was discharging, to make
room for another vessel to lie at au adjoining wharf, whereby the plain-
tiff lost certain wharfage. In an action by him against B. the presump-
tion is that B. acted within his duty and without malice.*

In case I. Mr. Justice Story has given an exhau.stive
review of tliis principle. *'By the general rules of evi-
dence," said he, *' presumptions are continually made in
cases of private persons, of acts even of the most solemn
nature, "when those acts are the natural result or necessary
accompaniment of other circumstances. In aid of this salu-
tary principle the law itself, for the purpose of strengthen-
ing the infirmity of evidence and upholding transactions
intimately connected with the public peace and the security
of private property, indulges its own presumptions. It
presumes that every man in his private and official character
does his duty until the contrary is proved ; it will presume
that all things are rightly done unless the circumstances of
the case overturn this presumption, according to the ma.xim,
omnia proesumunter rite et solemnitur esse acta donee pvohe-
tur in contrarimn. Thus it will presume that a man acting
in a public office has been rightly appointed ; that entries
found in public books have been made by the proper officer ;
that upon proof of title matters collateral to that title shall
be deemed to have been done; as for instance, if a grant
or feoffment has been declared an attornment will be

1 Alexander v. State, 50 Ga. 478 (ISTG),

- Bangor, etc., R. Co. v. Smith, 4" Me. 45 (1859).

' Solomon's Lodge r. Montniolin, 53 G:i.5l7 (1877). So the presnmption is that
a quorum of members were present at a business meeting of u, corporation. Citizen
Mut. Ins. Co. V. Sortw 'll, 8 Allen, 217 (18G4).

* Gregory v. Brooks, 37 Conn. 305 (1870).

Q2 PKESUMPTIVE EVIDENCE. [rULE 14.

intended, and that deeds and grants have been accepted,
whicli are manifestly for the benefit of the party. The
books on evidence abound with instances of this kind, and
many will be found collected in Mr. Starkie's late valuable
treatise on evidence. The same presumptions are, we think,
applicable to corporations. Persons acting publicly as offi-
cers of the corporation are to be presumed rightfully in
office; acts done by the corporation which presuppose the
existence of other acts to make them legally operative, are
presumptive proofs of the latter. Grants and proceedings
beneficial to the corporation are presumed to be accepted,
and slight acts on their part which can be reasonably
accounted for only upon the supposition of such acceptance
are admitted as presumptions of the fact. , If officers of
the corporation openly exercise a power which presupposes
a delegated authority for that purpose, and other corporate
acts show that the corporation must have contemplated the
legal existence of such authority, the acts of such officers
will be deemed rightful and the delegated authority will be
presumed. If a person acts notoriously as the cashier of a
bank and is recognized by the directors or by the corpora-
tion as an existing officer, a regular appointment will be
jiresumed; and his acts as cashier will bind the corporation
although no written proof is or can be adduced of his
appointment. In short, we think that the acts of artificial
persons afford the same presumptions as the acts of natural
persons. Each affords presumptions from acts done of
what must have preceded them as matters of right or mat-
ters of duty."

In case II. it was said : " It is said that the case does not
show that F. was president of the company because it was
not proved by the record of his appointment. There are
some cases in which a corporation is a party involving the
authority of the officers in which their authority must be
proved by the record. But the cases are numerous in which
their authority has been proved by parol evidence. In this
case the action is between other parties, neither of whom

RULE 11.] REQULAKITV OF OFFICIAL ACTS. C3

has the custody of tlie records, and before a court in
another State, so that there is n^ compulsory proce-;3 by
which they can be produced. It is proved that F. was the
acting president prior and subsequent to the time when the
note was transferred. He signed tlie policy of iusuranc3
as president for which the note was given, only one month
before it was transferred : and no annual mcetinir could have
intervened for the choice of any one in his place. We think
the evidence is sufficient that he was authorized to act as
president at the time. But it is said that if he was presi-
dent of the company, and so according to the customary
mode of transacting such business, authorized to transfer
the note, the presumption that he was so authorized is dis-
proved by the by-laws which are a part of the case. And
it is true that no specific authority to indorse notes is given
by the code or by-laws to the president or to any other
officer of the company. But it does not follow that such
authority is not necessarily implied in powers which are
granted. And it should be remembered that this is not an
action against the company as indorsers upon the contract
of indorsement. It is a suit between other parties involv-
ing only the authority of the president to sell the note in
payment of a demand against the company, and in addition
to the presumption arising from the usual course of such
transactions, the president is made by the bj'-laws ex officio
treasurer ; and so he had the legal custody of the assets."

"The question in this case," it was said in case VU.,
'* is not simply whether the defendant acted improperly,
or without strict legal right, or even maliciously, but
whether he was actuated in making and enforcinir the
orders complained of by a design and intention to break
up the contract relation existing between the plaintiff and
the captain of the brig Brilliant, and thereby injure the
plaintiff by preventing him from acquiring his expected
wharfage. The case turns on the proof of that design,
and the evidence in the ease does not furnish any such
proof on which a jury could properly find a verdict, nor

G4 TRESOIPTIVE EVIDEXCE. [rULE 14.

in our opinion would the evidence have been sufficient,
if the plaintiff had shown that the relations between hira
and the defendant were unfriendly. Every positive, ener-
getic and independent man is liable to have enemies, and to
have an unfriendly state of feeling existing between him
and other individuals. When such a man accepts an office
whose duties, properly exercised, will necessarily bring him
in conflict with the interests and prejudices of others, and
those with whom his relations are not friendly, his motives
will naturally be suspected and impugned ; but he will be
protected by the presumptions of the law in the perform-
ance of the duties required of him, unless it is clearly shown
that his motives are private and malicious, and that he has
wantonly and unnecessarily used the power incident to his
official state to gratify a personal spirit of revenge. We
discover nothing in this case which rebuts the presumption
that the defendant was acting under a sense of official
responsibility and with a view to an honest discharge of
public duty. The brig Brilliant had lain at the wharf of the
plaintiff from the 21st to the 2(3th of September, covering
part of the wharf of Miller & Co. Miller & Co. had a grain
elevator upon their wharf, and there was a canal boat lying
in the stream loaded with grain consigned to them which
could not come to their wharf and elevator, because it was
in part occupied, as well as the wharf of the plaintiff, by
the brig. The defendant was superintendent of wharves,
or supposed himself to be, and had in his possession the
certificate of the mayor that he was, and it is to be pre-
sumed was acting rightfully in ordering the brig to be
hauled astern. It is immaterial whether he was harbor
master or not, for the duty of a harbor master is to regulate
the location of vessels in the stream. It is sufficient that he
was the superintendent of wharves, dejure or de facto, or
honestly supposed himself to be such, and believed it to be
his duty to order the brig astern and permit the barge to
haul in, so that both might be accommodated, and acted
accordingly and did not act with the design imputed to him.

RULE 14.] PwEGULARITY OF OFFICIAL ACTS. G5

The object and purpose of his order appeared upon its face.
It Avas a reasonable and proper order under the circum-
stances, and one which it appertained to hi.s office to give.
The brig had ah'cady covered the wharf of Miller & Co.
and excluded the barge for five days, and but half her cargo
was discharged, and five days more would have been
required to complete the discharge. That would have been
an unreasonable time to have kept the barge lying in the
stream waiting the convenience of the plaintiff and prob-
ably subjecting Miller & Co. to heavy demurrage. Under
such circumstances it was the right of Miller & Co. to have
the brig hauled astern far enough to permit the barge to
come to their wharf, and the clear and imperative duty of
the defendant to give the order that he gave, and enforce it
energetically and determinedly. If for any good reason the
brig could not be hauled astern safol}^ and the plaintiff had
another wharf where the brig could be unloaded, as it
appears he had, the defendant would have been justified in
ordering the captain of the brig to remove his vessel to the
other wharf, where he did move it, to complete her dis-
charge, for the barge could be unloaded at no other place
than at the wharf and elevator of Miller & Co. Such an
order would have been nothing more than enforcing good
neighborhood, and a just regard for their mutual rights and
accommodation, between these adjoining wharf owners.
The presumption alluded to, and the inference arising from
this state of facts, that the defendant was governed in his
conduct by a sense of official duty, and not by a design to
injure the plaintiff through his contract relation as a
wharfinger with the captain of the Brilliant, is exceedingly
strong; and the fact, however clearly proved, that the per-
sonal relations of the plaintiff and defendant were unfriendly
would be entitled to little, if any, weight to rebut the pre-
sumption or negative the inference, and if that was all the
plaintiff sought to prove we should affirm the judgment
without hesitation. But it appears from the motion for a
new trial that the plaintiff proposed to go beyond the mere
5

QQ PRESUMPTIVE EVIDENCE. [rULE 14.

state of unfriendliness in his proof, and how far and with
what effect he would have done so if permitted we are
unable to see. We think he should have been permitted to
prove any acts of hostility and the circumstances under
which they occurred, from which an inference could be
drawn consistently with the rules of law in other respects,
that the plaintiflfwas governed in his conduct by the design
imputed to him and which constitutes the gist of the action.
Because such evidence was excluded we feel constrained to
grant a new trial. But we deem it our duty to say that,
unless the plaintiff can produce evidence, other than mere
unfriendliness, to rebut the presumption that the defendant
was acting from right motives, and the supporting inference
arising from the fact that a case existed calling imperatively
for his official interference in some way for the protection
of Miller & Co., the non-suit should be promptly renewed."

CHAPTEE lY.

THE REGULARITY OF BUSINESS AND UNOFFICIAL

ACTS.

RUTiE 15. — In commercial transactions the presnmption
is that tlie usual course of business was followed by
the parties thereto.

" Where," it was once said by an English judge, " the
maxim of omnia rite acta prcesumuntur applies, there indeed
if the event ought probably to have taken place on Tuesday,
evidence that it did take place on Tuesday or Wednesday
is strong evidence that it took place on Tuesday." '■

Illustrations.

I. In an action against the acceptor of several bills of exchange •which
were made in November, 1850, and became due on rebruary oth, and
March 12lh, 1851, the defense is that they were accepted by the defendant
while an infant. It is proved that the defendant came of age March 11th,
1851. The presumption is that all the bills were accepted before he
attained his majority. ^

II. It is alleged in a bill for relief that a certain agreement was in
writing. The presumption is that it was signed.*

III. A. and B. are proved to be carrying on business in partnership.
The presumption is that they are interested in equal shares.*

IV. It is the usage at a Boston hotel to deposit all letters left at the
bar in an urn kept for that purpose whence they are distributed every
fifteen minutes to the rooms of the different guests to whom they are
addressed. B. is a guest at the hotel on a day on which A. leaves at the
bar a letter addressed to B. The presumption is that the letter was
received by B.*

1 Avery r. Bowden, 6 E. & B. 973 (ISBO) ; Brownell r. Palmer, 22 Conn. 121 (1S52).

a Roberts v. Bethell, 12 U. B. 77'J (18J2).

» Rist V. Hobson, 1 Sim. & Stu. 543 (1824).

* Farrar v. Bcswick, 1 Moo. & R. 527 (lS.;rO ; Brewer i-. Browne, 63 Ala. 210 (1?'*0).
" Where there are two or more persona acting as partners, the prc.'*uniplion is tli:it
they are equal in interest in the business engaged in, aiul the property owned by
them in tlie firm i>anie." Mnorc v. Bare, 11 Iowa, 198 (1860).

' Dana v. Kemble, 19 Pick. 112 (1837).

( ^^ )

68 PEESUMPTIVE EVIDENCE. [RULE 15.

V. Parties conduct a business together. The presumption is Ihattbey
are partners.^

YI. A. sues B. for the price of certain goods made and delivered by
A. to B. The defense is that they are not of the quality ordered. The
fact that B. accepted them and kept them for some time without com-
plaint, raises a presumption that he had waived all objections. ^

YII. The question is whether L. was a partner in a certain firm.
Letters are produced written by L. in the name of the Arm, and entries
made by him in the firm books. This raises a presumption that he was.'

VIII. A note is executed by B., a member of the firm of B. & Co.
This is presumed to be a firm note and will bind the lirra.*

IX. Notes and accounts past due are received by an attorney. The
presumption is that he receives them for collection.^

X. Certain books of account of a partnership are produced in evi-
dence. They are presumed to be correct.*

XI. A. sells goods to B. The presumption is that the goods are to be
paid for on delivery.'

XII. A. lends a sum of money to B. The law presumes a promise on
the part of B. to repay A.*

XIII. A. accepts a draft on him drawn by B. The presumption is that
A. at that time had funds of B.'s in his hands with wiiich to pay it.*

XIV. A. is employed by B. at a monthly salary. The presumption is
that A, was engaged by the month and not for any definite period. i''

XV. Freight is earned by a vessel. It is presumed to belong to the
owners of the vessel."

XVI. An entry is made by a clerk in his books of goods sold to A. The
clerk is dead. The presumption is that the goods were delivered.^*

1 McMullan v. Mackenzie, 2 G. Greene, 3G8 (1849) ; and see Ferris v. Kilmer, 47
Barb. -til (1806).

s Davis V. Fish, 1 G. Greene (la.), 40G ; 48 Am. Dec. 387 (1848) ; and see Minor v.
Edwards, 12 Mo. 137; 49 Am. Dec. 121 (lfU8). The waiver of the Stale's power to tax
is never presumed. Battle v. Mobile, 9 Ala. 234; 44 Am. Dec. 438 (1846) ; Mayor of
Baltimore v. Baltimore, etc., R. Co., 6 Gill, 268; 48 Am, Dec. 530 (1848).

3 Lewis V. Tost, 1 Ala. (55 (1840).

* Jones V. Rives, 3 Ala. 13 (1841).

6 MardistJ. Shackleford, 4 Ala. 493 (1842).

« Routen v. Bostwick, 59 Ala. 3G0 (1877) ; Desha v. Smith, 20 Ala. 747.

' Roberts v. Wilcoxson, 36 Ark. 364 (1S80).

« Swift r. Swift, 46 Cal. 207 (1873).

» Trego V. Lowrey, 8 >'eb. 238 (1879) ; Kendall v. Galvin, 15 Me. 131; 32 Am. Dec.
Ill (is:i8).

ii Jones V. Vestry of Trinity Church, 19 Fed. Rep. 69 (1883).

31 Williams V. Insurance Co., 1 llilt. .345 (1857),

12 Clarke v. Magruder, 2 II. & J. 77 (1807).

RULE 15.] BUSINESS AND UNOFFICIAL ACTS.

69

XVII. A. selLs goods to B. on credit. The presumption i.s that A.
believed B. to be solvent at the time of tlie sale.*

XVIII. A. and B. are in business together. The presumption is that
the partnership is solvent.'

XIX. The question is whether A. is insolvent. It is proved that there
are unsatisfied judgments against A. This raises the presumption that
he is.*

XX. The question is -whether B. is insolvent. A creditor cannot
collect his debt from B. This raises a presumption of his insolvency.'

XXI. An envelope produced bears the post-mark and date of a certain
office. This raises the presumption that the letter was mailed and sent
at this time.*

XXII. Two persons sign a note. The presumption is that they are
equally bound, ^

XXIII. A letter is proved to have been written by A. The presump-
tion is that it was signed by A.'

XXIV. An envelope containing a letter bears a post-marlv. The pre-
sumption is that it has been through the mail.*

XXV. In an action for the conversion of a dwelling house removed
from one lot to another, it does not positively appear whether the building
was attached to the soil on either lots. The presumption is that it was.''

XXVI. An owner of land conveys a strip to a railroad company for
its track of the value of 8C0 for which he receives $1,G00. The presump-
tion is that damages from risk of fire from the company's engines are
included in the price. ^^

XXVII. A deed is proved to have been made and delivered to A.'s
ancestor. The presumption is that it is in A.'s possession and control.ii

XXVIII. Two person.s in possession of distinct portions of premises
make a joint mortgage of them. The presumption is that they are equal
owners of the premises and equally liable for the mortgage debt.^^

1 O'nrien r. Norris, 16 Md. 1'22 (ISfiO). "The presumption both of law aiul of
rea«on, in the absence of proof to the contrary is that when they sold the goods ou
a credit they believed the i)urchaser to be solvent and able to pay for them."

2 Wallace r. IUill,2SGa. 63 (ISoO).

3 Anslcy f. Carlos, 9 Ala. 979 (1S46) ; Lawson r. Orear, 7 Ma.. 7S1 (1S41) ; Reynolds
V. rharr, 9 Ala. .5^0 (1SI6) ; Uccson r. Wiley, '28 Ala. 575 (165C).

< Bilberry f. Moblcy,20 Al.i. 2;;0 (ls.-)2).
f> New Haven County P.k. r. Mitchell, 15 Conn. 206 (18i2).
• Orvis V Newell, 17 Conn. 97 (1845).
» Lucas V. Brooks, 23 La. Ann. 117 (1S711.
8 r. S. f. Noelkc, 17 Blatclif. 554 (18S0).
» Northrup r. Trask. 39 Wis. 515 (1S7G).
10 Rood V. New York, etc., R. Co., 18 Barb. gO (1854).
H Xcwsom V. Davis, 20 Tex. 425 (IS.").
1= Stroud r. Casey, 27 Fa. St. 471 (1850).

70 PEESUMPTIVE EVIDEXCE. [rULE 15.

XXIX. Certain bank notes are proved to pass currently in the com-
muuity. The presumption is that thej' are genuine. ^

XXX. It is the general custom at a mill to give a receipt to the own-
ers of rice delivered there. A. delivers rice there. The presumption is
that he was given a receipt.'

XXXI. A merchant renders an account to a customer. The customer
keeps it without objection. The presumption is that it is correct.'*

XXXII. A. demands payment of a sum of money of B. B. gives him
it, stating that he does so on certain conditions. A. remains silent.
The presumption is that A. acquiesces in the conditions.*

XXXIII. A. holds a note payable to bearer. A. is presumed to be the
owner.^

In case I. Jervis, C. J., said: " There is nothing on the
face of the bill to show when it was accepted. Why then is
it that this evidence is sufficient? It is because it must be
presumed that the bill has been accepted during its currency,
and consequently before the commencement of the action;
because it is the usual course of business to present bills for
acceptance before the time for the payment of them has
run out, and within a usual time after the drawinj; of
them. * * * J decide this case upon this broad ground,

1 Hummell v. State, 17 Oliio St. 628 (1867). There is no presumption that a bond
executed in Virginia during tlie war, but payable two years after date is payable in
Confederate currency. Dyerle v. Stair, 28 Gratt. 800 (1877). Nor that a receipt for a
certain number of dollars given by a master in chancery in North Carolina during
the civil war, was meant to acknowledge the payment of that sum in gold or silver.
If there is any presumption it is the reverse of this. Melvin v. Stevens, 84 N. C. 78
(1881).

- Ashe V. De Tlosset, 8 Jones (L.) 240 (18C0).

3 Webb V. Chambers, 3 Ired. (L.) 374 (1843).

* Ilallr. Holden, 116 Mass. 172 (1874).

5 Stoddardr. Burton, 411owa,582 (1875). An indorsement made at the time of the
inception of a note is presumed to have been for the same consideration expressed
by the note. If made subsequently to the date of the note, and without a prior
indorsement by the payee, it is presumed to have been for a different consideration,
and the party will be regarded as a guarantor; but if made after a prior indorse-
ment by the payee, the law presumes it to have been done in aid of the negotiation
of the note, and the party will be treated as a subsequent indorser. If made with-
out date it will be presumed to have been made at the inception of the note. Cal-
burnr. Averill,30 Me. 310; 50 Am. Dec. 030 (1849). When a note is indorsed in blank,
the presumi)tion is that holder purchased it immediately from payee. Peaslee v.
Eobbins, 3 Mete. 104 (1811). The drawee of a check is presumed to know the signa-
ture of the drawer. Redington v. Woods, 4b Cal. 406 (1873). " If the defendant signed
the check and it came into the hands of a bona fide holder, the pi-esumption of
law was that it was issued by the drawer, unless the contrary was shown by him."
Hoyt V. Seeley, 18 Conn. 359 (1847).

RULE 15.] BUSINESS AND UNOFFICIAL ACTS. 71

that wc are to presume, unless the contrary is shown, lliat
a bill of exchange has been accepted, not on the day of its
date, but within a reasonable time afterward. It is not to
be presumed that the acceptance took place after the matur-
ity of the bill. That view disposes of the case as to all these
bills — as to five of them because they became due before
the defendant attained the age of twcnt3'-()ne, and as to the
sixth, because a reasonable time for its acceptance had
elapsed before the defendant's majority." And Maule, J.,
added : "Although it is not usual to accept a bill on the day
on which it is drawn, it is usual to do so at some early
opportunity after that day. Therefore, where the drawer
and acceptor are both living in the same town, the presump-
tion is that the bill is accepted shortly — within a few
days — after it is drawn ; it being manifestly the interest
of the drawer to have a negotiable instrument made perfect
as early as conveniently may be. The date of the bill,
therefore, though not evidence of the very date of the
acceptance, is reasonable evidence of the acceptance having
taken place within a short time after that day, regard being
had to the distance the bill will have to travel from the one
party to the other. Upon the same principle upon w^hich
that presumption rests, it may be presumed in this case
that the bills were accepted before they arrived at matur-
ity."

"Where a partnership," said Parke, B., in case III.,
" is found to exist between two persons, but no evidence is
given to show in what proportions the parties are interested,
it is to be presumed that they are interested in equal moie-
ties."

In case IV. it was said : " The evidence that a letter left
at the Tremont House and addressed to B. actually reached
him is of the same nature as a similar presumption arising
from putting a letter so addressed into the post-office, and
may even be considered as considerably stronger, inasmuch
as there would be less probability of a failure."

So there is a presumption against the validity of a claim

72 PKESUMPTIYE EYIDEXCE. [RULE 15.

which has long hiin dormant.^ So non-user of a patent
*♦ amounts to a very strong presumption as to the invention
not being useful." ^ So notice is presumed.'

Sub-Rule 1. — Persons engaged in a particular trade are
presumed to be acquainted with the value of articles bought
and sold therein (A), the names under which they go in
such trade (B), and the general customs obtaining and
followed there ( C ) .

Jllvstrations.
A

I. A person takes some bank bills to a banker to be exchanged for gold,
and the banker, after examining them, buys them from himata discount.
Afterwards discovering that one of the bills is worthless, he brings an
action for the money he paid for it. He can not recover, there being no
e%'idence of fraud or knowledge on the customer's part. The banker is
presumed to be acquainted with the value of the bills purchased by him.*

B.

I. D. imports into New York a quantity of spelter, which under the
name of tutenague is exempt from duty. The collector, however,
claims and receives a duty of 20 per cent thereon, and subsequently D.
sells the spelter to M. at long price, which by custom gives a purchaser
the right to any drawback on duty which maybe made. Afterward the
collector decides that spelter is not dutiable, and pays back to D. the 20
per cent. In an action by M. claiming this duty M. can not recover,
as the presumption is that both M. and D. knew at the time of the sale
that the article was not dutiable .^

" It is a reasonable presumption," it was said in case I.,
*'that those who are dealing in articles of commerce,
especially those who purchase by wholesale from the
importers, are acquainted with the different names by which
such articles are known to the commercial world. And if

1 D. T. V. D. L. R., 1 p. & D. 127 (1867) ; Sibbcring v. Earl of Balcarras, 3 DeG. &
Sm. 735 (18.50).

2 In re Bakewell's Patent, 15 Moore P. C.385 (18G2).

3 Mayor of Atlanta v. Perdue, 50 Ga. 607 (1875) ; Chapman v. Mayor of Macon, 55
Ga. 566(1875).

* Hinckley v. Kersting,21 111. 247 (1859).
6 Moore v. De.s Arts, 2 Barb. Ch. 636 (1848)

nULE 15.] BUSINESS AND UNOFFICIAL ACTS. 73

spelter was actually exempted from duty by the names used
iu the section of the statute relative to exempt articles,
pro])ably both parties to this sale had reason for believing
that the claim made by the collector was unfounded and
that it would probably be reversed, and the duties be
refunded to the importer. If so, the purchaser should have
made his contract with reference to that event, so as to
secure for himself the benefit of the refunded duty iu case
it should turn out that the collector was wrong."

C.

I. A. employ's B., a broker, to trade for liim on the Stock Exchange.
The general rules of the Exchange are presumed to be known to A., and
B. has an implied authority to contract iu accordance therewilh.i

II. It is the general custom in a certain trade to charge interest on
accounts after a fixed time. Parties dealing therein are presumed to be
cognizant of this custom, and are bound bj' it.*

III. It is the general custom of a bank to demand payment of notes
and give notice on the fourth instead of the third day after they are due.
Persons negotiating notes at this bank, or making commercial paper for
the purpose of having it negotiated there, are presumed to know this
custom.^

IV. A dry goods salesman sues B., his employer, for wrongful dismis-
sal. There is a general custom in the dry goods trade, that -when a clerk
or salesman begins a season without a special contract, he can not be dis-
missi-d until the end of it. Both A. and B. are presumed to know this
custom.*

All trades have their usages, and when a contract is made
with a man a])()ut the business of his craft, it is framed on
the basis of such usage, which becomes a part of it, unless
there is an express stipulation to the contrary.^

1 Sutton V. T.ith.am, 10 Ad. >% Ell. 27; Bayliffc v. Butterworth, 1 Ex. 25.

- McAlistcr V. Kc;ib, 4 Wi nd. i^S, S Jd. lO'.i; Meech v. Smitli, 7 Id- Mo.

8 Mills r. B.ink of U. S., 11 Whoat. VA ; Kenner v. Dank of Columbia, 0 Td. 5ii2;
Bank of Washinprlnn v. Triplctt, 1 I'ct. 2.i ; Ycaton r. Rank of Alexaniiria. 5 Craiich,
9; Sniilli r. Wliiliug, 12 Mass. C; Dorchester, etc., Bank f. New Euglaud Bank, 1
Cush. 177.

* Given »'. Charron, 15 Md. 502, and see Lyon r. George, 44 Md. 205.

5 Pittsburg t'. O'Neil, 1 Penn. St. 34:5; Uindskoff v. Barrett, 14 Iowa, 101; Bcatty
t". Gregory, 17 Jrf. 109; Toledo, etc., Insurance Uo. r. Siieares, 16 Ind. 52; Grant r.
Lcxin;:!;ton Fire Insurance Co., 5 /rf.23; Barrett r. Williamson, 4 McLean,. ^SD: (Jreavcs
V. Legg, 11 Ex. G42; 2 H. &N. 210. Iu a New York case Folger, J., said: "There are

74: PRESUMPTIVE EVIDEXCE. [eULE 15.

Ill ciise I. it was said: "A person who deals in a particu-
lar market must be taken to deal according to the custom
of that market, and he who directs another to make a con-
tract at a particular place must be taken as intending that the
contract may be made according to the usage of that trade."

In case II. it was said: '* The uniform custom of a mer-
chant or manufacturer is presumed to be known to those in
the habit of dealing with him, and in their dealings they
are supposed to act in reference to that custom."

In case III. it was said: " The parties are bound by such
usage whether they have a personal knowledge of it or not.
In the case of such a note the parties are presumed by
implication to agree to be bound by the usage of the bank
at which they have chosen to make the security itself nego-
tiable." It must be borne in mind, however, that this
knowledge is presumed only where the custom is a general
and notorious one. A local, special custom in a particular
trade is not presumed to be known even to persons doing
business therein.^

Sub-Rule 2. — An agreement to pay for services rendered
and accepted i.s presumed(^A) unless the parties are mem-
bers of the same family or near relatives(l^) .

Illustrations.
A.

I. It is proved that medical services were rendered by A., a physician
to B., deceased. The law presumes a promise by B. to pay for tliem.*

ca?es of principal and agent where one has been sent by another to flo acts in a
particular business to be done at a ])articular locality — as on Stock Exchange —
where the power to deal is a privilege obtained by the payment of a fee, and is
restricted to a body which has for its regulation and government come under certain
prescrilied rules or established usages; and as the agent could not do the will of his
principal nor could the princijial himself, save in conformity with those rules or
usages, it is held that the principal must be bound thereby, whether cognizant of
them or not, and that ignorance will not excu.se him." Walls v. Bailey, 49 N. V. 464.
• 1 Miller v. Burke, 68 N. Y. 625; Flynn v. Murphy, 2 E. 1). Smith, 378; Farmers,
etc., Bank v. Sprague, 63 N. Y. 605; Pierpont v. Fowle, 2 Woodb. & M. 23; Smith v.
Gibbs, 44 N. l\. 335.

2 In re Scott, 1 Redf. (N. Y.) 234 (1847) ; and see Burr v. Williams, 23 Ark. 244
(1861), as to goods furnished.

RULE 15.] BUSINESS AND UNOFFICIAL ACTS. 75

In case I. it was said: "As regards tlic debt of the exec-
utor against the estate, which is for medical service and
attendance, it is satisfactorily proved that he was the family
physician of the testator; that he, as such, attended him
for several years, for which he had not received any
pay. These services being valuable, the law presumes
a promise to pay. It is coniix'tent, however, for the
opposing party to show that the services were rendered
gratuitously."

B.

I. On the marriage of A. to B. the former goes to live with B.'s father
by invitation, -without any agreement as to payment of board for himself
and wife. There is no presumption that he agreed to pay board.*

II. A step-father assumes the parental relation toward B., an infant,
the child of his wife by a former husband. On the other baud B. renders
services to the step-father to a value in excess of his board and educa-
tion. There is no presumption of a promise to pay for such services.'^

III. The brother of A. after A.'s death presents a claim for services for
a period of five years. During tliis time he was boarded and clothed by
A. There is no presumption of an agreement to pay him for these ser-
vices.^

IV. A. and his wife board and lodge in the house B., the brother of A.,
and assist him in carrying on his business. There is no presumption that
either the services on the one hand or the board and lodging on the other
were to be paid for.*

V. L. is the mother of K.'s wife and lives with them for ten years.
There is no presumption of an agreement by her to pay for board, etc.,
during this time.*

VI. B. being out of emploj-ment goes to live with C, and while there
performs certain services for C. B.'s mother and C.'s wife are cousins.
The law implies an agreement to pay the value of such services."

In case II. it was said: "Under certain circumstances
where one man labors for another a presumption of fact
will arise that the person for whom he labors is to pay him

1 Wilcox V. Wilcox, 48 Barb. 327 (1SG7).

= Williams v. Hulcliinson, 3 N. Y. 312 (1850) ; Andrns r. Foster, 17 Vt. 556 (1?45).
3 IJowen V. Bowen, 2 Dr.idf. 336 (ia53) ; Uobinson r. Cusliinan,2 Deuio, 119; Fitch
V. Peckham, 16 Vt. 150 (1814) ; Weir v. Weir, 3 B. Mon. 645 (1343).
* Davies v. Da vies, i) C. & P. 87 (1839).

' Kincr r. Kelly, 23 Ind. 89 (1S67) ; Cauble r. Ryan, 26 Id. 207.
« Gallagher r. Vaught, 8 Uuu, 87 (1870).

7(5 PRESUMPTIVE EVIDENCE. [rULE 15.

the value of his services. It is a conclusion to which the
mintl readily comes from a knowledge of the circumstances
of the particular case, and the ordinary dealings between
man and mark. But where the services are rendered between
members of the same family no such presumption will
arise. We find other motives than the desire of gain which
may prompt the exchange of mutual benefits between them,
and hence no right of action will accrue to either party,
altliough the services or benefits received may be very val-
uable."

In case V. it was said : " The law takes notice very prop-
erly of the customs of hospitality and friendly intercourse
usual among mankind. This is it seems to us the basis of
the distinction between cases where the parties are not
related by such ties, and those where they are so related.
The counsel concedes that if the deceased had been K.'s
mother, instead of the mother of his wife, the law of the
case would have been so. We perceive nothing to warrant
a distinction between the case put and the one before us."

In case VI. it was said : '' Ordinarily where services are
rendered by one person for another without any agreement
in respect to compensation, the law will imply an agree-
ment to pay what the services are fairly worth. There is,
however, a well recognized exception to this general rule in
respect to services rendered by near relatives and mem-
bers of the same family, on the ground that the law
regards such services as acts of gratuitous kindness and
affection. * * * "Yho defendant's wife and the plain-
tiff's mother are cousins. * * * They were not,
therefore, related at all, except by aflinity, and we think
such relationship not sufficiently near to place the parties
within the exception. We have been unable to find any
reported case that carries the doctrine to that extent. In
fact, although the elementary writers seem to lay down
the exception as broadly as it is stated above, yet all the
reported cases confine it to cases of claims between mem-
bers of the same family, and the courts refuse to imply a

EULE 15.] BUSINESS AND UNOFFICIAL ACTS. 77

promise by reason of the existence of the family vcla-
tion. * * * "VYe do not think tiiat the relation between
the parties to this action was such as would prevent the law
from implying an agreement to i)ay for services rendered."

Sub-Rulo 3. — Negotiable paper is presumed to have been
regularhj negotiated, and to be or to have been regularly
held^ (A), except where it was procured or put in cir-
culation through fraud or duress or is illegal(^ii).

Illustrations.

A.

I. A. Is the holder of a promissory note. The presumption is that he
is a bona fide holder for value received.'

1 The legal presumiUion is that every promissory note was given in the course of
business anil for value and iliat it is to be paid by the maker as the primary debtor.
Bank of Orleans v. Barry, 1 Denio, 116 (1S45) ; Miller v. Mclntyre, 9 Ala. 638 (1846) ;
Dickerson v. Burke, 25 Ga. 225 (1858). "The presumption is that a note is of the
value of the sum promised thereby to be paid." Loomis v. Mowry,8 Hun, 311 (1S76) ;
Woodworlh v. iluntoon, 40 ni. 131 (1805) ; Curtiss v. Martin, 20 Id. 557 (1858) ; Kelley
r. Ford, 4 la. 140; Trustees r. Hill, 12 Id. 462; Wilkinsons. Sargent, 9 7d. 521 ; La throp
V. Donaldson, 22 id. 235 (1867) ; Canal Bank v. Templeton, 20 La. Ann. 141 (1S6S) ;
Scott V. Williamson, 24 Me. 343 (1844) ; Burnham v. Webster, 19 Id. 232 (1841) ; Ear-
bee V. Wolfe, 9 Port. 300 (1S39) ; Cook v. Helms, 5 Wis. 107 (1856). But where fraud
or illegality or duress is shown in its inception, the burden is on the holder to show
regularity. Bailey v. Biihvell, 13 M. & W. 76; Harvey v. Towers, 6 Ga. COO; Fitch v.
Jones, 5 El. & B. 238; Catlin v. Hansen, 1 Duer. 323; Gwin v. Lee, IMd. Ch. 445;
Munro v. Cooper, 5 Pick. 412; Sisternians r. Field, 9 Gray, 332 (1857) ; Tucker f. Mor-
rill, 1 Allen, 528 (1801); Beltzhover r. Blarkstuck, 3 Watts, 26; Vallet v. Parker,6
Wend. 615; Bissell v. Morgan, 11 Cush. 198 (1853) ; Perrin v. Noyes, 39 Me. 384 (1855) ;
Ellicott V. Martin, 6 Md. 509 (1854) ; Paton v. Coit, 5 Mich. 505 (1858) ; Clark v. Pease,
41 N. H. 414; Garland v. Lane, 46 Id. 245; Perkins v. I^out, 47 Id. 389 (1807) ; Farm-
ers', etc., Bank V. Koxon, 45 N. Y. 762 (1871) ; Nickerson v. Ringer, 76N. Y. 279 (1S79) ;
Sperry v. Spalding, 45 Cal. 344 (1873). In Alabama want of consideration, like fraud
casts the burden on the bolder. Wallace v. Bank, 1 Ala. 567; Mars^ton v. Forward,
5 Id. 347 ; Thompson v. Armstrong, 7 Id. 256; Boyd v. Mclver, 11 Id. 822 (1874) ; Ross
r. Dunham, 35 Id. 434 (l.-OO). But the English rule is that where there is "no fraud
nor any suspicion of fraud, but the simple fact is that the defendant received no
consideration fer his acceptance, the iilaintilf is not called upon to prove that ho
gave value for the bill." Whilakerr. Edniumls, 1 M.&R.,1 Ad. & Ell. 638, overruling
Thomas r. Newton, 2 C. & P. 006, and Heath r Sanson, 2 B.& Ad. 291. And sec PLob-
inson v. Reynolds, 2Q. B. 634; Baileyv. Bidwell, 13 M. & W. 72; Berry t-. Alderman,
14 C. B. 95 ; Smith r. Brame, 10 Q. B. 244. And the same rule is followed in most of
the States. Holmo r. Karpser, 5 Binney, 465 ; Knight v. Pugh, 4 AV. & S. 445 ; Sforton
f. Rogers, 14 Wend. 570; Rogers v. Morton, 12 Id. 484; Vallicr r. Zane, 6 Gratt.216;
Wilson t'. Lazier, 11 Gratt. 477; Tucker r. Morrill, 1 Allen, 528 (1861).

« Goodman v. Simonds, 20 How. 313 (1857) ; Lehman v. Tallahassee Manfg. Co., 64
Ala. 567 (1879) ; First Nat. Bank v. Green, 43 N. Y. 298 (1871).

78 PKESUMrriYE evidence. [rule 15.

II. In an action on a promissory note bj' the holder against the indorser,
it is not alleged that the plaintiff is a holder for value. This is pre-
sumed.^

III. An action is brought on a negotiable promissory note indorsed to
the payee in blank. The defense is failure of consideration. The pre-
sumption is that it was transferred to the plaintiff on the day of its
date. 2

IV. A note is indorsed without date. The presumption is that the
indorsement was made before the note became due.'

" The law was thus framed and has been so adminis-
tered," it was said in case I., "in order to encourage the
free circulation of negotiable paper by giving confidence
and security to those who receive it for value ; and this
principle is so comprehensive in respect to bills of exchange
and promissory notes which pass by delivery, that the title
and possession are considered as one and inseparable, and
in absenceof any explanation, the law presumes that a party
in possession holds the instrument for value until the con-
trary is made to appear, and the burden of proof is on the
party attempting to impeach the title. These principles
are certainly in accordance with the general current of
authorities and are believed to correspond with the
general understanding of those engaged in mercantile
pursuits."

In case H. it was said : "It does not expressly appear in
the declaration that the indorsees are holders for value.
Value is implied in every acceptance and indorsement of a
bill or note. The burden of proof rests upon the other
party to rebut the presumption of validity and value which

1 Clark V. Schneider, 17 Mo. 295 (1852) ; Poorman v. Millls, 35 Ciil. 118 (1808).

2 Noxon V. De Wolf, 10 Gray, 343 (18.58). In Kanj,'er v. Gary, 1 Mote. 3Gil, it was
eaid: "A negotiable note being otFercd in evidence duly indorsed, thie legal pre-
sumption is tliat such indorsement was made at the date of tlie note, or at least
antecedently to its becoming due; and if the defendant would avail himself of any
defense that would be open to hira only in case the note was negotiated after it was
dishonored, it is incumbent on him to show that the indorsement was in fact made
after tlie note was overdue.'.' Stevens v. Bruce, 21 Pick. 193 ; Webster v. Lee, 5 Mass.
534; Hendricks v. Judah, 1 Johns. 319.

3 Mobley v. Kyan, 14 111. 51 (1852); Pettis v. WesUake, 3 Scam. 5:55; Walker v.
Davis, 33 Me. 516 (1851) ; McDowell v. Goldsmith, 6 Md« 319 (1854) ; Hopkins v. Kent,
17 Id. 117 (18e0).

RULE 15.] BUSINESS AND UNOFFICIAL ACTS. 79

the law raises for the protection and support of negotiable
paper."

In case III. it was said: "In Parkin v. Moore, ^ it
was held by Baron Alderson that the burden of piov-
infT that the note was indorsed after it was overdue
was upon the defendant, where he sought to defend by
showing such facts as would constitute a good defense to a
dishonored note, and this ruling, being submitted to the
other judges, was confirmed by them. It may be that
under the more precisely accurate use of the term ' burden
of proof ' as now held by the court, it would have been
more correct to say that upon the production by the holder
of a negotiable promissory note, indorsed in blank, the
legal presumption is that it was indorsed at its date, and it
is incumbent on the defendants to overcome that presump-
tion by evidence. This must have been so understood in
the present case, as the plaintiff had already produced a
note thus indorsed, and the question was upon the effect
of the testimony offered, to show that it was indorsed after
overdue. Upon such a state of the case, it was the duty of
the defendants to offer sufficient evidence to control the
legal presumption arising from the indorsement of theuuie.
In ihis sense the burden was upon the defendants."

B.

I. In an action on a bill of exchanjje by an indorsee against the acceptor,
there is evidence that the bill has been procured by a fraud upon the
defendant. This casts the burden of proving that he paid value for it uu
the plaintiff.*

II. In answer to an action on a promissory note the defendant pleads
that it was illegalin its Inception and that the plaintiff took it without
value. The illegality is proved. The burden is cast on the plaintiff to
show value.*

III. A check on a bank is given by S. to C, for a gaming debt. It is
transferred toF., who brings suit on it against S. The burden ib upon
F. to prove that he took it bona fide and for value.*

J 7 0. & P. 408.

* Ross f. Dnukard. 35 Ala. 434 (ISGO) ; Royd v. Mclver, 11 Id. S23 (1847.)
' Cailey t'. Diilwell, 13 Jr. & W. 74 (l.>*44).

* Fuller V. UulcUius, 10 Cal. 5'23 (ISJS).

80 PRESUMPTIVE EVIDENCE. [llULE 15.

" "When," it was said in case I., " the drawer or acceptor
of a bill of exchange has proved that it was procured by
fraud * * * the presumption that the indorsee paid
value is overcome, and it is incumbent upon him to prove
that fact before he can claim the protection which is
vouchsafed by the law to a purchaser for value without
notice."

In case II. Baron Parke said: " It certainly has been the
universal understanding that if the note were proved to
have been obtained by fraud or affected by illegality, that
afforded a presumption that the person who had been guilty
of illegality would dispose of it, and would place it in the
hands of another person to sue upon it ; and that such proof
casts upon the plaintiff the burden of showing that he was
a bona fide indorsee for value."

""With checks," it was said in case III., "as with
promissory notes, the presumption is that they are given
upon a valid consideration, but this presumption being
rebutted, the necessity is thrown upon the holder of prov-
ing: that he received it in o-ood faith, without notice of the
illegality of the consideration."

A note payable one day after date, it is held in Geor-
gia, is not entitled to this presumption. " This position,"
it was said, "assumes that the onus lies on the defendant
to show that the plaintiff took the note after its maturity.
Ordinarily, that is when the note has some time to run
from execution to maturity, this is true; but we do not
think that principle applies to notes like this due one day
after date; for the time run is so short that it is not prob-
able that it should be put in circulation before maturity, at
least not sufficiently so to raise such a presumption of the
holder. Notes given due and payable at the time of their
execution or at one day after date, do not belong to that
class of paper intended for negotiation and circulation for
commercial purposes, in which all the presumptions are in
favor of the holder in order to protect innocent purchasers
and to encourage and foster their circulation ; but they are

RULE 17.] BUSINESS AND UNOFFICIAL ACTS. 81

given more us an evidence of indebtedness by the maker to
the payee." ^

RULE IG . — The presumption is that any act done was
done of right and not of wrong.

Illustrations.

I. A lease of dwelling houses contains a covenant on the part of the
lessee that he will not, without the consent of the lessor, carry on any
trade in any house. He afterwards converts one of them into a public
house and grocery, and the lessor, with knowledge of it, receives the
rent for more than twenty years. The presumption is that the lessor has
licensed this use.*

II. An action is brought on a contract for goods sold. The goods are
proved to be liquors. The presumption is that the plaintiff was duly
licensed to sell tliem.'

*♦ It is a maxim of the law of England," it was said in
case I. *' to give effect to every thing which appears to have
been established for a considerable length of time, and to
presume that what has been done was done of right and
not in wrong. That practically has caused a series of tres-
passes to constitute a right so that it may be said, a right
has grown out of proceedings which are wrongful. But in
truth it is nothing more than giving effect to notorious and
avowed acquiescence. No person would have permitted a
covenant to be broken for more than twenty years, unless
he was aware that it was broken as a matter of right. It is
not necessary in point of form to send the case to a jury
to find the facts which the judge may tell them they ought
to presume."

KXJLiE 17. — The performance of a mere moral duty is
not presumed.

Illustrations.

I. A. sells goods to B. and B. sells them to C. C. sends his clerk to
get them (they being still in A.'s possession), and they are delivered to

1 P.call V. LeaTcrctt, 32 Ga. 105 (1S61).

2 Gibson v. Doeg, 2 II. & N. HI.') (18.57).

3 Horan v. Weiler, 41 Penu. St. •470 (lS62j.

6

82 PRESUMPTIVE EVIDENCE. [RULE 18.

the clerk on his promise that C. vriW pay A. In an action by A. against
C. no presumption arises that the clerk communicated his bargain
to C.i

*'I am clearly of opinion," said Willes, J., in case I.,
** that there was no evidence that C. authorized or rati-
fied the promise made by his clerk. There being no original
authority in him to make the promise, it was a thing done
by him out of the ordinary scope of his duty; and although
there was a moral duty cast upon him to communicate to
his employer the fact of his having made the promise, it was
nothing more than a moral duty, and the omnia prcesiwi-
untur rite esse acta donee probetur in contrarium is never
applied to such a duty as that. There is, therefore, no pre-
sumption, either that the clerk did or did not perform that
duty; and in the absence of positive evidence that the
promise was communicated to C, the jury would not have
been warranted in assuming that it was merely because the
evidence was equally consistent with either supposition."

RUIiE 18. — Documents regular on their face are pre-
sumed to have been properly executed, and to have
undergone all formalities essential to their validity .-

niiistrations.

I. A copy of an agreement in the hands of the opposite party is
offered in evidence. It is objected that it must be first proved to be
stamped as required by statute. The presumption is that the original
is stamped.'

II. A statute provides that no recovery can be had on a foreign bill of
exchange unless stamped at the time it is transferred. In an action on

1 Fitzgerald v. Dressier, 7 C. B. (N. S.) 375 (1850).

2 Freeman v. Thayer, 33 Me. 76 (1851); Munroe v. Gates, 4S Id. 463 (1860); see
Stevens v. Tafft, 3 Gray, 487 (1855) ; Sadler v. Anderson, 17 Tex. 245 (1856) ; Diehl v.
Emig, 65 Penn. St. 327 (1870); Roberts v. Pillow,! Hempst. 6:54 (ISoi); Re British,
etc., Assurance Co., 1 DeG., J. & S. 488 (1863) ; Lane's Case, Id. 504.

3 Crisp V. Anderson, 1 Stark. 35 (1815). "Am I to presume that this agreement
is unstamped in lavor of a defendant who refuses to produce it? I ought rather to
presume omnia rite acta particularly after notice. I shall assume it to have been
stamped until the contr.iry appears." Per Ellenborough, C. J.,and see Closmadeuc
V. Carrel, 18 C. B. 36 (1H56) ; Pooley v. Goodwin, 4 Ad. & EU. 94 (1835) ; Hart v. Hart
1 Hare, 1 (1841).

RULE 18.] BUSINESS AND UNOFFICIAL ACTS. 83

a foreign bill of exchange, the stamp is on the document when produced
at trial; but there is no evidence that it was po when inclorsed to plain-
tiff. The presumption is that it was so stamped at the lime of the
transfer. 1

III. An action of ejectment is brought on an assignment of a term
to sicure the payment of an annuity. A statute required that f<uch
deeds to be valid should be enrolled. This will be presumed to have
been done.'

IV. The law requires contracts to be stamped. A contract is sued on.
The presumption is that it was regularly stamped.'

V. A deed sent to a foreign country to be signed by a married woman is
returned duly executed, and with an attestation clause that it was
"signed, sealed, and delivered." There is no mark of a seal. The pre-
sumption is that the deed was sealed.*

VI. A deed concludes, " as witness our hands and seals," and the
attestation clause speaks only of the " signing and sealing." The pre-
sumption is that it was duly delivert-d.*

VII. The attestation of a deed is in the usual form. The attesting
witness testifies that he saw the party sign it, but does not remember
that it was sealed and delivered. These things will be presumed."

VIII. A witness to prove the execution of a bond does not recollect
whether at the time it was executed it had any seal. The bond con-
tained the words, "sealed with our seals," and had a seal at the time of
the trial. The presumpt.ou is that there was a seal w heu executed."

IX. A person's signature to a deed is proved, i.e., that it is his hand-
writing. The sealing and delivery of the deed is presumed.*

X. Two deeds bear date on the same dny. A priority of execution
will be presumed to bear out the clear intention of the parties.*

1 Bradlaugh v. DeRen, L. R. 3 C. P. 28G (1868), and see Marine Investment Co. v.
Haviside, L. R. 5 II. L. Cas. 624 (1872) -wlK-re Lord Cairns said: " 1 take it to be
clear lliat if an instrument is lost, and if there should be no evidence given respect-
ir.git on one side or the other, the presumption which ought always to be made and
which always would be made by this court would be that the iustrumeut was prop-
erly stamped."

- Griffin V. Mason, 3 Camp. 7 (ISU).

s Thayer i-. Barney, 12 Minn. 513 (1867) ; Smith v. Jordan. 13 Id. 2M (1868)).

* Re Saudilands, L. R. 6 C. V. 411 (1871).

s Hall V. Baiubridge, 12 Q. B. G99 (1S48).

6 r.nrling v. Patterson, 9 C. & I'. 570 (1840).

' r.all r. Taylor, 1 C. & P.417 (1S24).

8 Grellier v. Xcale, 1 Peake, 109 (1818) ; Talbot v. Hodson, 7 Taunt. 251 (1816) ; Re
Huckvale, L. R. 1 P. & D. ,375 (1867) ; Adam v. Kerr, 1 B. & P. 3ii') ; Andrews v. Mot-
Icy, 12 C. B. (>'. s.) 526; Vermicombe v. Butler, 3 Sw. & T. 5S0; SpcUsburg v. Bur-
dett, 10 Bl. &F. 810.

» Atkyns v. Horde, 1 Burr. 106 (1757)

1#

84 PKESUMPTIVE EVIDENCE. [RULE 18.

XI. Property is conveyed by lease and release in one deed. Priority
of execution of the lease will be presumed. ^

XII. In a conveyance of land, the grantor described himself as exec-
utor of him in whom the title last was. The presumption is that there
was a will.*

XIII. A mortgage for purchase money given at the time a deed from
A. to B. was made is produced, and is executed with proper formality.
The deed is lost. The presumption is that it, also, was properly exe-
cuted.3

XIV. A number of deeds are made to convey property to different
persons, but it does not appear which was made iirst. The presumption
is that they were made in proper order.*

XV. A deed is made to A. and B. jointly. The presumption is that
they are equally interested.*

XVI. A warehouseman's receipt and guaranty indorsed thereon are pro-
duced. The presumption is that they were executed at the same time.*

XVII. There is no proof when a deed was delivered. The presump-
tion is that it was delivered on the day it bears date.'

XVIII. A deed expresses on its face that the consideration was paid
by the wife. The presumption is that it was her own money .^

XIX. A deed is duly attested. The presumption is that it was duly
delivered.''

XX. A consideration in a deed is not expressed. It is presumed to be
the value in money of the property.'**

XXI. A plaintiff declares on a certain contract which the statute
requires to be in writing. The presumption is that it is in writing. '^

XXII. A 'bill of complaint is brought on a certain agreement. It
does not state whether it is in writing or not. If not in writing it would
be void by statute. The presumption is that it is in writing. i^

1 Barker v. Keets, 1 Freem. 2.il (167S) ; Brice v. Smith, Welles, 1 (1737).

2 Maverick v. Austin, 1 Bailey, 59 (1828).

3 Godfrey V. Disbrow, Walk. (Mich.) 260 (1S43).

< Dudley v. Cadwell, 19 Conn. 219 (1818). . But see Bissell v. Nooney, 33 Conn. 441
(18C6).

5 Lonf? r. McDougald, 23 Ala. 413 (1853).

6 Underwood v. Ilossack, 33 111. 208 (1865).

' Smiley ^'. Fries, 104 111. 416 (1882); Teoitle t'. Snyder, 41 N. Y. 397 (1S69) ; Deininger
V. McConnell, 41 111. 227 (1866) ; Hardin v. Crate, 78 111. 533 (1875).

8 Stall V. Fulton, 30 X. J. (L.) 430 (1803). " If the whole of certain premises are
conveyed for a given price, the necessary presunijition is that some portion of that
price is paid and received for every portion of the premises." Nutting v. Herbert,
S7 N. II. 350 (1858).

9 Powers V. Russell, 13 Pick. 69 (1832).

1" Clements v. Laudman, 20 Ga. 401 (1858).

M Gibbs V. Nash, 4 Barb. 419 (1848) ; Coles v. Bowne, 10 Paige, 520 (1S44).

12 Printup V. Johnson, 19 Ga. 75 (1855).

RULE 18. J BUSINESS AND UNOFFICIAL ACTS. 85

XXIII. Tliere is no proof whether the signature of tlie malcor of a deed
or the subscribing witness was made lirst. The presuiuptiou is that the
maimer signed it lirst. i

XXIV. A mortgage is executed on land in B. It is presumed to have
been executed in the place whore the laud is situated.''

XXV. Real estate is sold by A. and B. jointly, and A. receives all the
proceeds. The presumption is that A. aud B. arc joint owners, and
that cue-half the proceeds belongs to each.'

XXVI. It is uncertain whether a mortgage was paid before, at, or
after tlie time it was due. The presumption is that it was paid on the
day it was due.*

XXVII. In laying out a town the lots are numbered in regular arith-
metical order. The lots are of one hundred acres each. The presump-
tion is that they are located contiguous to each other, and that lot " t> ''
includes all the land between "7" and "9." ^

" It would be very inconvenient," it was saifl in case IT.,
" for the plaintiff to be required to prove that the stamps
were on the bills before their first indorsement to an English
holder, as required b}'- the act. There was prima facie
evidence that the act had been complied with, and it was
for the defendant to give evidence to rebut that."

In case III., Lord EUenborough said: " If the annuity
was not duly enrolled, that proof should come from the
other side. Here is an assignment executed by the plain-
tiff. I will presume it to be valid until the contrary is
shown."

In case IV., Bovill, C. J., said : " I think there is^;?'/^?^
facie evidence that this deed was sealed at the time of its
execution and acknowledgment by the parties. To consti-
tute a sealing, neither wax nor wafer, nor a piece of paper,
nor even an impression is necessary. Here is something
attached to this deed which may have been intended for a
seal, but which from its nature is incapable of retaining an
impression. Coupled with the attestation and the certili-

1 Hughes V. Dcbnam, ft Jones (L.), 129 (1860).

2 Thayer f. iMursli, 11 IIuii, 501 (1877).

s Adams v. Leaveus, 20 Conn. 73 (1849).

* Johnson v. Carpenter, 7 Minn. 17G (1862).

t" VVarreu r. rierce, C .Me. 1 (1S29) ; 19 Am. Dec. ISO.

86 PRESUMPTIVE EVIDENCE. [rULE 18

cate, I think we are justified in granting the application
that the deed and other documents may be received and
filed by the proper officer." Byles, J., said: "I am of
the same opinion. The sealing of a deed need not be by
moans of a seal ; it may bo done with the end of a ruler or
anything else. Nor is it necessary that wax should be used.
The attestation clause says, that the deed was signed, sealed,
and delivered by the several parties; and the certificate of
the two special commissioners says that the deed was pro-
duced before them, and that the married women ' acknowl-
edged the same to be their respective acts and deeds.' I
think there was prima facie evidence that the deed was
sealed." And Smith, J., added : "Something was done
with the intention of sealing the deed in question. I con-
cur in granting this application, on the ground that the
attestation is prima facie evidence that the deed was
sealed, and that there is no evidence to the contrary."

In case VIII., Best, C. J., said that if sealing and deliv-
ery were not presumed, and the proof had to rest upon
the fallible memory of a witness at a distance of time, as
to whether all the requisites were performed at that time,
great danger would result to every kind of instrument after
the lapse of years ; and a member of the bar mentioned
that he was once engaged in a case in which the lord chan-
cellor held that similar evidence to that here produced was
sufficient to raise the presumption that everything neces-
sary was done, and that to rebut such presumption the con-
trary must be distinctly proved.

" Where a deed with the regular evidence of its execution
upon the face of it is found in the hands of the grantee, the
presumption is that it has been duly delivered."^ So
where each one of several joint owners of land takes into
his possession separate parcels of the land, and the land is
then separately held and claimed during many years, the
presumption arises that a partition thereof was made be-

1 Ward V. Lewis, 4 Pick, 51S (1827).

RULE 18.] BUSINESS AND UNOFFICIAL ACTS. 87

twocn the parties, under -which partition it h;is been thus
held and enjoyed.^

" Much is to be presumed in favor of ancient deeds if
accompanied by possession, and the same rule may be
applied to wills and to levies of executions to some
extent." ^

In case XXII. it was said: "The bill is silent as to
whether the an;reement was in writing or not. If the
agreement was such a one that it was required to be in writ-
ing by the Statute of the Frauds, then it is to be presumed
until the contrary is shown, that the agreement was in
writing, for it is, in general, to be presumed, until
something to the contrary be shown, that no man does what
the law forbids or what the law declares shall be invalid."

In case XXVII. it was said: "It is the well known
practices of proprietors of townships in this State, to have
them surveyed out iu ranges and lots, causing both to be
numbered in regular sequence. They then sell by the
number of the lot and range, without a more particular
description, and the purchaser is entitled to his lot
according to its actual location, as made by the survey,
if that can be ascertained, if not, it is to be located
from the plan of actual admeasurement. The plaintiffs
are the owners of number ei";ht, in the first ranjre east
in Baldwin, the plan of the town is lost, there is no ques-
tion about the range lines, between w^hich number eight
lies. The plaintiffs show where numbers seven and nine
are; and these lots are located beyond controversy. The
judge instructed the jury that number eight must be
presumed to extend from seven to nine ; and that the
burden of proof was upon the party interested to show a
different location to do so by satisfactory evidence. lie
would have been justitied in using stronger lanfruaire : and
in stating that eisrht did and must extend from seven to
nine, unless a different original location could be shown.

1 nussell V. Marks, 3 Mete. (Ky.) 37 (ISCO) ; Munroe r. Gates, 48 Me. 4G3 (1S60).
3 Uill V. Lord, Id Mo. iiji (.1661) ; liouU v. Soarrell, 3 Burr. 1773 (17C1).

88 TEESUMFTIVE EVIDENCE. [rULE 18.

The burden of proof is doubtless upon the phiintiffs to
make out their case ; but when they show the range lines
between which their lot is founded, and the side lines of the
lots next below, and next above theirs in number, they have
located their lot, and made out their case ; if it be not
successfully controverted by opposing testimony. The
proprietors voted, it seems, to lay out their town in one hun-
dred-acre lots. But it is of no consequence what they
proposed or intended to do ; the question is, what they have
done, by their surveyors or other agents duly authorized.
Their intention, as manifested by their vote, was very inac-
curately executed ; some of the lots exceeding the quantity,
which is not unusual, from the liberal admeasurement
formerly made ; and some falling short of the number of
acres proposed, which has less frequently happened. It is
conceded that eight ought to adjoin seven, because the sur-
veyor must have begun at one and progressed onwards ; but
it is argued that it would not conclusively follow that
it would extend to nine; especially in the present
instance, where the plaintiff claims two hundred acres,
instead of one hundred, to which, it is insisted, his
lot should be restricted ; and that it ought rather to
be presumed that the surveyor dropped or omitted a
lot in his numbering. But it must be considered that
there is precisely the same reason for presuming that nine
adjoins eight, as that eight adjoins seven. The line, there-
fore, adjoining seven is no better established than that which
adjoins nine. If the defendant could have shown original
corners, or a line dividing the, space between seven and
nine, the case would have been differently presented. But
the burden of proof was upon him to do this; and as he
failed to do it, ci^ht must be located as it stands numeri-
cally adjoining seven on one side, and nine on the
other. Selling, as the proprietors do, by the number of the
lot and of the range, the range and lot lines are referred to
as monuments, and when found, will govern and control
courses, distances and quantities."

RULE 18.] BUSINESS AND UNOFFICIAL ACTS. 89

Sul>-RuIo 1. — Dates are presumed to he correct^ u-hen
found in written instruments (A), hut are no evidence
of collateral facts (B).

Illustrations.

I. In an action, to prove notice of certain facts to a person at a certain
time, it is proposed to read certain letters written by him at that time.
There is nothing to show that they were ■written at tliat time except tlieir
date. The presumption is that they were written at the time they bore
date.i

II. The question is, at what time a bill of exchange was issued. The
presumption is it was issued at the time it bears date.^

III. The question is, when a certain payment was made. A receipt is
produced dated September 8th. The presumption is that it was made on
that day. »

lY. The day of the execution of a deed is disputed. The presumption
is that it was executed on the day it bears date.*

V. There are certain indorsements on a promissory note of receipt of
interest. It being material to know at what time they were made, the
presumption is that they were made at the time they bear date.*

VI. A deed is dated April 3d. The presumption is that it was exe-
cuted on that day.^

VII. A note is dated July 1, 187-i. The presumption is that it was exe-
cuted on that day.'

VIII. An assignment is dated on a certain day. The presumption is
that it was made on that day.^

1 Potez V. Glospop, 2 Ex. 102 (1S48) ; Sinclair v. Rappalpy, 4 M. Sc "W. 312; >ralr.as
V. Clement, 10 L. J. (Q. B.) -135 (ia")0) ; Butler v. Mountgarrct, 7 H. L. Cas. 647 (is.">0) ;
Morgan r. Whitmore, 6 Ex. 713 (1851) ; Bakerr. Melburn, 2 M. & W. 8.53 (18.37) ; Hunt
V. Massey, 1 B. & Ad. 903 (1834) ; Piillen r. Hutchinson, 25 Me. 240 (1845) ; MeMnim v.
Clark, Morns (la.), 1.30 (1841); Abrama r. Pomcroy, 13 HI. 133 (1851); M'illiams v.
"Woods, 16 Md.220 (1860) ; Bruck v. Cole, 4 Saudf. 80 (IS.iO).

2 Anderson v. Weston, 6 Bing. (X. C.) 206 (1840) ; Laws v. Kand, 3 C. B. (v. s.)
445 (1857) ; Claridge v. Kleet. 15 Pa. St. 255 (1850). An exception exists in the English
court3 in the case of proof of a petitioning creditor's debt in bankruptcy proceed-
ings. Wright r. Lawson, 2 M. & W. 7.39 (1837).

» Caldwell V. Ganiblo, 4 Watts, 202 (18:55).

< Costigan r. Gould, 5 Denio, 290 (1848); PuUen v. Hutchinson, 25 Me. 242
(1845).

' Smith t». Battens, 1 Moo. & R. 341 (1834).
« Smith V. Porter, 10 Gray, 66 (1857).
' Knisely v. Sampson, 100 111. 573 (1881).
« Byrd v. Tucker, 3 Ark. 451 (1840).

90 PRESUMPTIVE EVIDENCE. [rULE 18.

IX. A bill or note is indorsed in blank. The presumption is that it
was indorsed on the day of its date or before due.^

X. A name is written on the back of a note. The presumption is that
it was put there at the time of the making of the note.''

XI. The question is at what time an action of replevin was com-
menced. The writ is produced bearing date, July 11, 1860. The pre-
sumption is that the action was commenced on that day.'

XII. An action is on a 'promissory note. The writ is dated April 15,
183-1, one day before the expiration of six years which would bar the
action. It is not served until April 24th. The presumption is that the
action was commenced on April 15th.*

XIII. A written paper containing a statement of mutual accoTints
between a creditor and a bankrupt by whom it was signed, andbeaiiug
date previous to the bankruptcy shows a balance due to the creditor.
This is prima facie evidence as against the assignees in an action brought
by them against the creditor that it was written at the time it bore date,*

XIY. To rebut a charge of cruelty certain letters are introduced, writ-
ten by the wife to the husband, There is no presumption that they were
written when they were dated.*

In case III. it was said: " The objection is that there is
no proof, except what appears on the face of the receipt
itself, that it was given on the 8th of September. * * *
We have come to the conclusion that the presumption is
that it was fairly done, as the law never presumes fraud;
and that the receipt should be received, with proper direc-
tions from the court that if manufactured by the parties it
should be entitled to no weight. It is a transaction in the
usual course of business, as it is well known that receipts
for the payment of money are frequently given without
witness of the payment."

*'As to the ^me," said Taunton, J., in case V., " I have
no doubt, if the indorsements were not written at the time

1 ITntchins v. Flintge, 2 Tex. 473 (1S40).

2 BeiUhall v. Judkins, 13 Mete. 2G5 (1847).

' Fcderhen v. Smith, 3 Allen, 119 (18G1) ; Bunker v. Shed, 8 Mete. 150 (1844) ; Lyie
V. Bradford, 7 T. B. Mod. 116 (1828) ; Day v. Lamb, 7 Vt. 426 (1835). But it is not con-
clusive.

* Gardner v. Webber, 17 Pick. 407 (1835).

6 Sinclair v. P.apgaley, 4 M. & W. 312 (1838).

« Houliston V. Smyth, 2 C. &P.24 (1825).

RULE 18.] BUSINESS AND UXOFFICIAL ACTS 91

they purport to bear date, it lies on the defendant to prove
it; in the absence of all evidence to the contrary, I shall
assume that they were written at the time they bear date."

In case VI. it was said: *' All deeds and contracts ou^^lit
regularly to be dated on the day of their execution. This is
important for a great variety of purposes. The rights of
the contracting parties are not unf requently made to de[)end
upon an accurate statement of time. Accordingly, it is found
by experience, that in the prudent management of affairs
this rule is commonly recognized as useful, and observed
with care, and this being at once the usual and proper manner
of conducting a transaction of this kind, it may well be con-
sidered reasonable and safe to conclude in any particular
instance, where there is no other evidence upon the subject
that any legal instrument by which property is conveyed,
was completed on the day on which it bears date. The
principle omnia prcesumuniur rile acta is not confined
merely to official proceedings or the doings of public bodies,
but has been extended to acts of private individuals,
expressly when they are of a formal character as writings
under seal."

In case XII. it was said: " The question then is whether
the date or the service of the writ is the commencement
of the action. It has certainly been understood in Massa-
chusetts, that the day of the date was the commencement
of the action. It \s prima facie evidence only, and admits
of evidence to rebut the presumption arising from the
date; but until rebutted, the presumption is to prevail that
the true date appears, and that date is the commencement
of the suit.

In case XIII. Lord Abinger said: " Those cases where
it has been held that promissory notes signed by the bank-
rupt are not evidence sufficient to support the commission
unless proved to have been in existence before the bank-
ruptcy, stand on a peculiar foundation of their own, which
distinguishes them from the present. In those cases it was
the interest of the petitioning creditor to support the com-

92 PRESUilPTIVE EVIDENCE. [eULE 18.

mission, and owing to the jealousy which the law feels of
a collision between him and the bankrupt, the practice has
been established when no other evidence of a petitioning
creditor's debt is offered than a paper in the handwriting of
the bankrupt, to require proof of the existence of that docu-
ment previous to the act of bankruptcy. But it has never
3'et been held, or even contended, that where a paper is
adduced in evidence against a bankrupt or his assignee, the
document itself is not pritna facie evidence that it was made
at the time it bears date ; and I never yet knew an instance
where the defendant was called upon to prove the actual
date."

" Generally speaking," said Best, C. J., in case XIV., "a
date is presumed to be correct. But where the letters of
the wife are given in evidence in favor of the husband,
you must prove when they where sent, because after a
reconciliation, husband and wife might contrive letters.'

B.

I. It is necessary to prove that G. was in Baltimore on tlie 9th of No-
vember, 1829. A promissory note dated Baltimore, November 9, 18J9,
and signed by G., is produced. This does not raise a presumption that
G. was in Baltimore on that day.i

1 Given v. Albert, 5 W. & S. 333 (18i3).

CHAPTER Y.

THE PRESmiPTION OF INNOCENCE IN CmL CASES.

RULE 19. — A person who is shown to have done any
act is presumed to have done it innocently and hon-
estly (A), and not fraudulently ^K), illegally -(C), or
wickedly.^

Ultistrations.

I. A man and woman live and cohabit together. The presumption is
that they are married.*

II. Marriages between white people and negroes are prohibited under
a penalty. A negro and a white woman live together. The presump-
tion is that they are not married.'

III. A husband and wife separate; the former goes and lives and
cohabits with another woman. The presumption is that he has obtained
a divorce.*

IV. A. marries B. having a husband, C, living. C. subsequently dies.
A. and B. continue to cohabit. The presumption is that they have been
married after C.'s death.''

1 Thus, a partr alleging fraud must prove it. Gutzweiler r. Lackman, 39>ro. 91
(1S66) ; Dlaisdell i: Cowell, U Me. 370 (1837) ; Inluibiiants of New Portland v. Inhab-
itants of Kingsfleld. 55 Me. 172 (1807) ; Ueeves v. Dougherty, 7 Yerg, 222 (isa4) ;
raxton V. Boyce, 1 Tex. 317 (1846) ; Ex parte Knowles, 2 Crunch C. C. 576 (1825) ;
Cooper V. Galbraith, 3 Wash. C. C. 546 (1819) ; Hagar v. Thomson, 1 Black. 80
(1861) ; Greenwood v. Lowe, 7 La. Ann. 197 (1852) ; Hewlett v. Hewlett, 4 Edw. Ch. 8
(1837) ; Watkyna v. "Watkyns, 2 Atk. 97 (1740).

2 Cummings v. Stone, 13 Mich. 70 (1864) ; Gassett v. Godfrey, 26 N. H. 415 (1853) ;
Farmer.-.', etc., Bk. v. Detroit, etc., R. Co., 17 Wis. 372 (1863) ; Howard v. Boorman,
17 Wis. 459 (1863).

3 Kenton County Ct. v. Bank Lick Turnpike Co., 10 Bush, 529 (1874) ; Long r.
State, 46 Ind. 582 (1874); Chapman r. Mclhvrath, 77 Mo. 44 (1882); Cross r. Brown, 41
N. H.'289 (l^GD) ; Kichards r. Kountze, i Neb. 209 (1676) ; Gay v. Bidwcll, 7 Mich. 510
(1859) ; Habersham v. Hopkins, 4 Strobh. (S. C.) 239 (1850) ; Russell v. Baptist Theo-
logical Union, 73 111. 337 (1874).

* I'ost V. Post, 70 HI. 481 (1873) ; Cope t-. Pearcc, 7 Gill, 263 (1848).

5 Armstrong f. Hodges, 2 B. Mon.70 (1841).

« Blanchard v. Lambert, 43 Iowa, 223 (1876).

^ Blanchard v. Lambert, 43 Iowa, 223 (1876) ; Yates v. Houston, 3 Tex. 433 (18^18) ;
Carroll v. Carroll, 20 Tox. 731 (1858) ; Fcnton y. Ueed, 4 Johns. 51; Rose r. Clark, 3
Page,573;Jacksou V.Clark, 18 Johus. 347. / n-x \

{V6 )

94 PRESUMPTIVE EVIDENCE. [rULE 19.

Y. A. being under the legal age, contracts a marriage T\'itli B.;the
marriage is void. When A. comes of age, B. is ou her deatli-bed and
dies three weeks thereafter; during that time they continue to live
together and to be recognized as husband and wife. A marriage will
be presumed to have taken place after A. came of age.^

VI. To sustain a plea of coverture, a defendant swore that she was
married at a certain chapel on a certain da}', and afterwards cohabited
with her husband ; the law required that to render a marriage valid, the
chapel in which it was solemnized, should be licensed. Held, that the
presumption was that the chapel in this case was duly licensed. ^

VII. In an action by A. against B., A. alleged that B., who had char-
tered his ship, had put on board a dangerous commodity by which a loss
happened, without due notice to the captain, or any other person employed
in the navigation; the burden of proving that B. did not give the notice
was on A.*

VIII. A railroad company is authorized to construct a railroad in a
public street, with necessary switches and turn-outs; it makes certain
switches which it is alleged are a nuisance. The presumption is that
they are necessary, and the burden is ou the one complaining of the
nuisance.*

IX. A physician is employed to treat A.'s wife and children. In a suit
for his services, it wiU be presumed that the visits, for which he charges,
were necessary.*

X. A statute requires that the taking of the sacrament should be a
prerequisite to holding a certain office. The presumption is that a per-
son holding such office is qualified in this manner.*^

XI. An insolvent exhibits an account of his debits and credits under
oath. The presumption is that it is a true account, and not that be has
committed perjury.'

XII. The action is for the malicious prosecution of the plaintifE with-
out probable cause. The burden of proving the absence of probable
cause is on the plaintiff. »

XIII. A statute provides that no justice of the peace shall hear any
examination in any bar-room where spirituous liquors are sold. A
justice holds an examination in a bar-room. It will not be presumed
that spirituous liquors were sold there.'

1 Wilkinson v. Payne, 4 T. R. 468 (1791).

2 Sicliel V. Lambert, 15 C. B. (N. s.) 781 (18fi4).

3 AVilliamsi;. East InaiaCo.,3 East, 104(1802).
< Carson v. Central U. Co., 35 Gal. 325 (1868).

6 Todd V. Myers, 40 Cal. 355 (1S70).

6 Kmgv. Hawkins, 10 East, 211, (1809).

' Hewlett?;. Hewlett, 4 Edw. (X. Y.) 7 (1839).

8 Lavender r. Ilortgens, 32 Ark. 704 (1878).

* Savier v. Cbipmau, 1 Mich. 116 (184s).

rXLE 19.] INNOCENCE IN CIVIL CASES. 95

XIV. Botli parties to a suit tcstifj' to matters within the kno'.vlecljre
of both. Material evidence of one is not contradicted by the other. It
is presumed to be true.i

XV. The question is whether A. was divorced from B., A. having sub-
sequently married C. A. testilles to a divorce proceeding, but the record
having been destroyed, there is no evidence that the decree was ever
recorded. The presumption is that it was.'^

In case I., if the inference should be that they were not
married, there must be an inference that they were living
in unlawful relations. " The mere cohabitation of two
persons of different sexes, or their behavior in other
respects as husband and wife, always aflbrds an inference
of greater or less strength that a marriage has been
solemnized between them. Their conduct being susceptible
of two opposite explanations, we are bound to assume
it to bo moral rather than immoral."

In case II., the presumption is that the parties were not
married, because if they were, they were guiltj"- of violating
the express words of a penal statute.

*' We have here," said Keating, J., in case 11., " the fact
of a religious ceremony having been performed by a minis-
ter of religion, in a place of public worship. All that is
required to make the marriage a strictly valid marriage is
that the place where the ceremony was performed was duly
licensed under the statute for the celebration of marriages,
and that the registrar was present. The question is whether
we may presume the existence of these two requisites. I
think we may, consistently with all the doctrines of legal
presumptions, fairly presume that the ceremony was prop-
erly and legally performed, seeing that if it were otherwise
the officiating clergyman wouldhave been guilty of felony."

It was argued in case ■\t:I. that to compel A. to prove the
want of notice was compelling him to prove a ne<T:ative

1 Matthews r. Lanier, 33 Ark. 91 (1878). A. swears that on a certain day he
deposited some money with n. R. swears that he did not. The veracityof ncitliL-r
id impeached. The prcMimptiou of truth is in favor of A. Hepburn v. Citizens
Bank, 2 La. Ann. 5Co (1S47).

■ Re Edwards, 68 Iowa, 431 (18^2).

96 PEESUaiPTIVE EVIDENCE. [rULE 19.

■which in a civil action at least was against the general rules
of evidence. But Lord Ellenborough said: "That the
declaration in imputing to the defendants the having
■wrongfully put on board a ship without notice to those con-
cerned in the management of the ship, an article of a highly
dangerous, combustible nature, imputes to the defendants a
criminal negligence, can not "well be questioned. In order
to make the putting on board -wrongful the defendants must
be cognizant of the dangerous quality of the article put on
board, and if being so,. they yet gave no notice considering
the probable danger thereby occasioned to the lives of those
onboard, it amounts to a species of delinquency in the per-
sons concerned in so putting such dangerous article on
board for -which they are criminally liable and punishable
as for a misdemeanor at least. We are, therefore, of
opinion, upon principle and the authorities, that the burden
of proving that the dangerous article in question "was put
on board without notice rested upon the plaintiff's alleging
it to have been "wrongfully put on board without notice of
its nature and quality."

In case XV. it "was said: " The next question is, has it
been established that deceased and appellant were divorced
in 1873. In considering this question we shall regard the
case as triable anew in this court. The appellant testifies
she never was served with notice of any such an action and
that she had no knowledge of any such proceeding. What
purports to be a copy of the bar docket for the April term,
1873, was introduced in evidence, and it fails to show there
was such a cause pending at that term. One of the books
being a record of the proceedings of the court, was not
destroyed. No decree of divorce can be found therein.
The first record, or entry, in this book was made in 18G9,
and the last in 1876, so that it covers the period when the
divorce is claimed to have been obtained. Two decrees of
divorce, between other parties, are set out at length in said
book, as having been procured at the April term, 1873. The
entries in the book are not in reirular order. Judgments or

iiuLE 10.] I:;^'OCE^'CE in civil cases.

97

decrees rendered, for instance, in 1872, precede a judgment
which was rendered in 1870. There was another record
book which was destroyed by the fire. There was evidence
tending to show the clerk made entries in both of these
books during the period of the trial of the action for
divorce. The evidence fails to show that any person ever
saw the alleged decree or record thereof. On the other
hand there is evidence which can not be ignored, that a peti-
tion was filed and that a decree of divorce was ordered by
the court, and a sufficient memorandum made by the judge in
his calendar to enable a decree to be drafted, or the clerk to
make the appropriate entry of record that a divorce had been
granted. It was the duty of the clerk, under the direction
of the judge, to have made a record of all the judgments and
decrees of the court which were made at the April term,
1873. It must be presumed, both the clerk and the judge
did their duty. The appellant repeatedl}^ and to divers
persons, after the divorce is claimed to have been obtained,
admitted such to be the fact, and afterwards she married
one Baker and cohabited with him as his wife in the same
bouse at which the deceased boarded. It is insisted the
admission of the appellant that there was a divorce should
not be considered, because whether there was a divorce or
not can only be shown by the record. Whether a decree of
divorce was ever entered of record by the clerk we are
not entirely satisfied. But that such a decree was ordered
by the court and directed to be entered of record, wc can
not doubt. This being so, we think the admissions and
acts, and conduct of the appellant, should be considered in
aid of the presumption that a decree of divorce was in fact
entered of record. That there was a divorce must be con-
ceded, or the other result follows that the appellant was
guilty of bigamy when she married Baker, and that the
deceased so knew. In the absence of clear and satisfactory
evidence to the contrary the presumption should be
indul"-ed that a divorce had been obtained, and the defend-
ant lawfully contracted the marriage with Baker. The
7

93 PRESUJirrm: evidence. [rule 19.

presumption of innocence rather than guilt should be
indulged. The evidence is quite persuasive, if not entirely
satisfactory, that there was a divorce. When to this then
is added the presumption of innocence, and the acts and
declarations of the appellant, we think the preponderance
of the evidence is that the appellant and the deceased were
duly and legally divorced."

B.

I. In an action at law the plaintiff reads to the jury a statement in the
handwriting of the defendant. The presumption is that he obtained it
fairly.^

II. A person makes a deed of land. The presumption is that he was
seized of the land at the time.^

III. R. gives to L. an order on J., his debtor, for a sum less than the
debt; he also gives to F. an order on J. for the whole sum due from J.
to L. F.'s order being lost, the question is which was given first. The
presumption is that the order in favor of L. was.^

IV. A. seeks to rescind a sale of land made by B. to him, on the ground
that B. had used fraudulent representations in making the sale. The
burden is on A. to prove this, as the presumption is in B.'s favor.*

V. It was contended that a sale was fraudulent. The court instructed
the jury that " it was necessary that the defendant should adduce stronger
proof to establish fraud than to prove a debt or sale ; that the presump-
tion was that every man acted honestly and without fraud, and when
fraud was alleged the proof must not only be sufficient to establish an
innocent act, but to overcome the presumption of honesty." Heldy
proper.*

VI. An action is by B. for deceitfully exchanging property, upon
which A., one of the parties, had an adverse claim at the time of the
exchange. The burden is not on B. to show that he had no notice.®

VII. To remove the bar of the Statute of Limitations from a claim
against a testator's estate the plaintiff proves a receipt of part payment,

1 Hazen v. Henry, 6 Ark. 86 (1845). "The possession of the account by defendant
raises the presumption not only that it was rendered, but tliat it came properly into
his hands." Nichols v. Alsop, 10 Conn. 263 (1834).

2 Bolster r. Cushman,34 Me. 428 (1852).

3 James River, etc., Co. v. Littlejohn, 18 Gratt. 53 (18G7) ; Littlejohn v. Ferguson, Id.
* Oaks V. Harrison, 24 Iowa, IT'J (1807) ; Burton v. Mason, 26 Iowa, 392 (1868) ;

Leigh ton v. Oit, 44 Iowa, 680 (1876).

i H.atch V. Bayley, 12 Cush. (Mass.) 27 (1853).

« Patee v. Pclton, 48 Vt. 183 (1876) ; and see Ilibbard i-. Mill, 46 Vt. 243 (1S73).

RULE 19.] INNOCENX'E IN CIVIL CASES. 99

signed by him, which was found in the testator's room. The mere fact
that the plaintiff was seen in that room alone would not justify the iufer-
euce that he fraudulently placed his receipt among the testator's papers. ^

VIII. A mortj^cage is alleged fraudulent. The bui-den of showing this
to be so is on the complainant.''

IX. A law allows an administrator commissions on the money in his
hands except where he fails to make annual reports to the ordinary. In
proceedings in which it was charged that an administrator was not enti-
tled to money which he claimed as commissions, the burden of showing
that he did not make the required returns is on the complainant; the
presumption is that he did his duty.^

In case III. it was said : "In the absence of any evidence
on the subject the presumption must be that L.'s order was
given first. For it would have been an act of folly as well as a
fraud in R. to give L. an order for the amount of his debt
when he had already given F. an order for the whole bal-
ance due him from the company. The court will not pre-
sume this, in the absence of all evidence, but will presume
the contrary,"

In case IV. it was said : " To say the least it is left much
in doubt whether defendant ever made the representations
charged. The presumption is that the transaction was fair
and honest, and, as plaintiff affirms the contrary, it is his
duty to sustain his allegations by sufficient proof, by such
evidence as will satisfy the conscience of the chancellor.
When, upon all the facts, the case is left in equipoise, the
party affirming must fail."

" It is certainly true," said Mr. Justice Storj^ delivering
the judgment of the Supreme Court in another case,* " that
length of time is no bar to a trust clearly established, and
in a case where fraud is imputed and proved, length of time
ought not, upon principles of eternal justice, to be admitted
to repel relief. On the contrary it would seem that the
len<]jth of time durinir which the fraud has been success-

1 Carroll r. Quynn, 13 Md. 379 (185S).

» Price t'. Govcr, 40 Mil. 102 (1S74).

« Gee V. Ilicks.Ilich. (S. C.) Eq. Cas. 5 (1831).

* Prevost V. Gralz. 6 Wheat. (U. S.) 481 (1821) ; 1 Pet. C. C. 3G4 (1S16).

100 PKESmiPTIVE EVIDENCE. [rULE 19.

fully couceuled and practiced is rather an aggravation of
the olleuse and calls more loudly upon a court of equity to
grant ample and decisive relief. But length of time neces-
saril}' obscures all human evidence, and as it thus removes
from the parties all the immediate means to verify the value
of the original transactions, it operates, by way of pre-
sumption, in favor of innocence and against imputation of
fraud. It would be unreasonable after a great length of
time to require exact proof of all the minute circumstances
of any transaction, or to expect a satisfactory explanation
of every difficulty, real or apparent, with which it may be
encumbered. The most that can fairly be expected in such
cases, if the parties are living, from the frailty of memory
and human infirmity, is that the material facts can be given
with certainty to a common intent, and if the parties are
dead and the cases rest in confidence and in parol agree-
ments, the most that we can hope is to arrive at probable
conjectures and to substitute general presumptions of law
for exact knowledge. Fraud or breach of trust ought not
lightly to be imputed to the living, for the legal presump-
tion is the other way, and as to the dead who are not here
to answer for themselves it would be the height of injust-
ice and cruelty to disturb their ashes and violate the sanc-
tity of the grave unless the evidence of fraud be clear
be3'ond a reasonable doubt."

But fraud may be inferred from circumstances. In
Morfordv. PecA;,Hhe court say: "The last point which
we propose to discuss is contained in the first proposition
of the charge to the jury, who were told that the plaintiffs
must prove the fraud, and that it could not be inferred.
The court probably intended by this merely to convey to
the jury the idea embodied in the maxim so often quoted,
that 'the law never presumes fraud.' The maxim itself
is liable to mislead a jury, and requires explanation to tiie
effect that the law in its charitable estimate of human

1 40 Conn. 334 (1S78.)

RULE 19.] IXNOCEXCE IX CIVIL CASES. 101

nature, never supposes a person guilty of a thing so base
until it is proved; but it must never be taken to mean that
the law will not imply fraud from facts and circumstances
where it is not directly proved, or will not in some cases
even find constructive fraud where no actual fraud is
proved. The above maxim embodies a principle similar
to that which obtains in criminal cases, that the law pre-
sumes every one innocent until i)roved guilty ; but it would
hardly do to say that guilt can never be inferred, for in
most criminal cases, especially of a felonious character, the
conclusion of guilt must be arrived at, if at all, by the aid
of indirect evidence, by inference from other facts and cir-
cumstances. We think the judge made the maxim more mis-
leading by substituting "inferred " f or " presumed." The
former is a stronger word than the latter (in connection
with the words " can not"), for the purpose of excluding
indirect evidence. To infer is derived from the Latin inferre^
compounded of " ^?^," from, and " ferre'' to carry or bring,
and its strict meaning is to bring a result or conclusion
from something back of it, that is, from some evidence or
c?a^a from which it may be legally deduced. But 'to presume'
is from the Latin ^rocswmere, consisting of " proc,'' before
and *■'■ sumere^'''' to take, and signifies to take or assume
a matter beforehand, without proof — to take for granted.
We do not suppose jurors would weigh these words in the
light of such a verbal criticism, but we know of no better
way to illustrate the substantial difference in the impression
which these two words are calculated to make on the
common mind. ^ We think this first proposition, standing
by itself, was calculated to mislead the jury."

C.

I. It is alleged that certain goods were sold contrary to law. The bur-
den of proving that the sale was in violation of law is on the party
alleging it.i

1 Trottr. Irieh, 1 Allen, 481 (ISf.l) ; Ilewes v. Platts, 12 Gray, 143 (1S53) ; Stebbius
V. Leowolf, 1 Cush. 137 (1819) ; Kidder v. Xon-is, 13 N. U. 53-2 (1847).

102 PEESIDITTIVE EA^IDEXCE. [rULE 19.

II. A statute allows ten per cent interest to be reserved only in the
case of money loaned. A contract provides for the payment of ten per
cent interest without showing the consideration. The presumption is
that it was money loaned.^

III. The question is whether A. has committed a certain act. The
doing of the act renders A. liable to a penalty. That A. has done an act
involving a penalty will not be presumed.*

IV. A. sues B. for his services as B.'s bar-keeper. There is no proof
whether B. is a legal seller of liquor, i.e., has a license. The presump-
tion is that he has.*

V. A. is sued for destroying certain dwelling houses. In mitigation
of damages he offers to prove that the houses were houses of ill-fame
and could not have been rented for any other purpose — honest people
would not live in them. The evidence is inadmissible ; for the law can
not presume that future tenants will violate the law.*

So it is a general rule that negligence will not be
presumed without some evidence showing a state of
affairs from which negligence can properly be inferred.^
Thus it is shown simply that a vessel took fire. Here no
presumption arises that the fire was the result of any neg-
ligence.® So seaworthiness in a vessel is presumed.^ But
if she is lost without stress of weather or without sustain-
ing damages from danger of the seas, unseaworthiness is
presumed.^ In like manner the happening of a catastrophe
which might have been prevented raises a presumption of
negligence. A boiler for example explodes. The presump-
tion is that it v/as negligently made or used.^ Or a blast

1 Sutphen v. Cushman, 35 111. 187 (1864).

2 Sidney v. Sidney, 3 P. Wms. 270 (1734) ; Clark v. Periam, 3 P. Wms. 334 (1741) ;
Scholes V. Hilton, 10 M. & W. 15 (1842).

3 Timson v. Moulton, 3 Cush. 269 (1849).
< Johnson v. Farwell, 7 Me. 370 (1831).

s Linsday v. Connecticut, etc., R. Co., 27 Vt. 643 (1854).

« The Buckeye. 7 Biss. 23 (1863).

' Martin r. Fishing Ins. Co., 20 Pick. 389; .32 Am. Dec. 220; Lunti;. Boston Marine
Ins. Co., 6 Fed. Kep. 508; Werk v. Leathers, 1 Woods, 272.

8 Snethen v. Memphis Ins. Co., 3 La. Ann. 474; 48 Am. Dec. 462 (1848) ; Patrick v.
Hallett, 1 Johns. 246; Talcotv. Commercial Ins. Co., 2 Johns. 129; Miller v. Ins. Co.,
2 McCord. (S.C.) 330; 13 Am. Dec. 734 (1823) ; Dupeyre v. Western Ins. Co., 2 Rob.
(La.) 4.J7; 38 Am. Dec. 405 (1848) ;Prescott v. Union Ins. Co.,1 Whart. (Pa.) 399; 30 Am.
Dec. 206 (1830). That a carrier received goods in good order is presumed. Breed v.
Mitchell, 48 Ga. 533 (187.3).

» Illinois Cent. E. Co. v. Phillips, 49 111. 234; Illinois Cent. R. Co. v. Houck, 72 111.
285 (1S74).

BULE 19.] INNOCENCE IN CIVIL CASES. 103

explosion injures a horse. The presumption is that it (the
blast) was not properly covered.^ Or an animal is killed
by a railroad locomotive on the track. The presumption is
that it was negligently killed.""' As said by the Supreme
Court of Georgia: "We incline to think that the mere
fact that the company's train killed the cows was sufficient
to raise the presumption that the killing was the result of
negligence in the company's servants. When one man kills
another the law implies malice in the killer ; so if one man
kills another's cattle ought there not, in like manner, to be
an implication of malice or negligence in the latter.^

1 Ulrich V. BIcCabe, 1 Hilt. 2.51 (185G).

« Little Rock, etc., R. Co. v. Fiuley, 37 Ark. 5G2 (ISSl) ; Little Rock, etc., R. Co.,
V. Henson, 33 Ark. 415 (18S2).

' Georgia R. Co. v. Willis, 28 Ga. 317 (1859) ; Georgia R. Co. v. Monroe, 49 Ga. 373
(1873).

CHAPTER YI.

THE PRESUMPTIONS OF MARRIAGE AND LEGITIMACY.

RULE 20. — Marriage (A) or filiation (parentage) (B) may
be presumed.

A.

In Cargile v. Woocl,^ it is said: "Where parties have
cohabited together and held themselves out as man and
wife, and there are circumstances from which a present con-
tract may be inferred, the law, out of charity and in favor
of innocence and good morals, will presume matrimony.
The law in general presumes against vice and immorality,
and on this ground holds acknowledgment, cohabitation,
and reputation presumptive evidence of marriage. Mere
cohabitation is not usually considered sufficient. Bishop
lays down the doctrine that * cohabitation and the reputa-
tion of being husband and wife are usually considered
together in questions concerning the proof of marriage, the
one beino; in a certain sense the shadow of the other. Some
of the authorities favor the idea that reputation of itself
may be received as sufficient \)vooi prima facie ^ but it must
be uniform and general; and if there is a conflict in the
repute, it will not establish the marriage. On the other
hand, its sufficiency in any case has been denied, unless
there be accompanying proof of cohabitation.' ^ Cohab-
itation and reputation are at best only presumptive proofs,
and when one of these foundations is withdrawn, what
remains is too weak to build a presumption on. There is

1 63 Mo. 56, (1876), and see Johnson v. Johnson, 1 Dessau. 595 (1797).
* 1 Bish. Mar. and Div. (5th ed.), sec. 438.

(104)

RULK 20.] MAKRIAGE AND LEGITIjIACV. 105

good sense in tlie Scotch laWjbj' which cohabitation alone is
consiilored insufBcient, and Avhich requires in addition habit
and repute, because it is said tlie parties may eat, live, and
sleep together as mistress and keeper without any intention
of entering into marriage. Cohabitation is simply the first
step, and when that is accompanied by an acknowledgment
of the matrimonial relations, and treating each other as a
man and wife and holding one another out to the world as
such, there may reasonably be a jiresumption founded upon
all these facts that the intercourse is lawful instead of mere-
tricious. These things all go to form the circumstances
upon which reputation is grounded. Reputation consists
of the belief and the speech of the people who have an
opportunity to know the parties, and have heard and
observed their manner of living. But cohabitation may be
notoriously illicit, and known to be so in the neighborhood
in Avhich the parties reside. In such a case the law would
surely not presume that it furnished any presumption or
evidence of marriage. The reputation of the parties and
mode of life, founded on facts, would repel it, and a pre-
sumption in their favor would assert what is well known to
be a falsehood. Therefore, cohabitation and reputation
must both exist before the presumption can be raised. If
parties cohabit together as man and wife, treat each other as
such, and acknowledge the existence of that relation, and
thereby acquire the reputation of being married among
the people, the fact of marriage may well be presumed.
But if the facts show the contrary, and the reputation is that
they are not married, no such presumption can be indulged.
The court therefore declared the law correctly, when it
required reputation as well as. cohabitation."

B.

Filiation or parentage may at law be established, and can
only in general be so established, as regards the father, by

1C6 PKESmiPTIVE EVIDEXCE. [llULE 20.

a coml)in.ition of fucts indicating the connection of parent
and child between an individual and the family to which he
claims to belong. Among the principal of these facts are
that his mother was married to the person whom he claims
as his father at the time he was born or begotten ; that he
has always borne his name and been treated and maintained
and educated as his child ; that he has been uniformly
received as such in society, and that he has been acknowl-
edged as such by the family. These things being shown his
legitimacy is presumed.^

Sub-Rule 1. — Tlie law presumes the validity of a mar-
riage ceremony^ {A), and that every person is legitimate
(B).

Illustrations

A.

I. Parties appear at a church aud the minister publicly and in the
presence of others performs a ceremony of marriage between them,
aud they afterwards regard themselves as marx'ied. The presumption is
that the ceremony was legal and regular, though there is no proof of the
particulars of the ceremony or that it was according to the forms and
usages of the church.^

II. On a question of legitimacy, a sentence of nullity of a marriage
on account of the refusal of the woman's father to consent is produced.
There is a statement in a parish register that a marriage took place
with the consent of her mother; but saying nothing about the father.

1 Weatherford v. Weatherford, 20 Ala. 548 (1852) ; Illinois Loan Co. v. Bonner, 75
111. 315 (18C4) ; Barnum v, Barnum, 42 ]\Id. 253 (1875). In Blackburn v. Crawford, 3
Wall. 175 (18U5) , the court insti-ucted the jury that If a man and woman live together
as husband and wife, and the man acknowledges the woman as his wife, and always
treats her as such, and acknowledges and treats the children which she bears to
him as his children, and permits them to be called by his name, there is a pro-
sumption of law that they are legitimate. On appeal this was held incorrect.
" Under such circumstances," said Mr. Justice Swayne, " the law makes no presump-
tion. The question to be determined was one of fact and not of law. The facts
referred to were a part of the evidence. They were to be weighed against the
countervailing evidence. They might by possibility all bo true, aud yet no marriage
have occurred, and the children all be illegitimate."

2 Ilarrod v. Ilarrod, 1 K. & J. 4 (1854) ; Fleming v. Fleming, 4 Bing. 2G6 (1827) ;
Sichel V. Lambert, 15 C. B. (N. s.) 782 (1804).

3 People V. Calder, 30 Mich. 85 (1874) ; Fleming v. People, 27 N. Y. 329, and see
State V. Kean, 10 N. H. 347 (1839).

KULE 21.] MARRIAGE AND LEGITIMACY. 107

The presumption in connection with other circumstances, is that the
marriage was legal. ^

In case II. it was said: " I think tliat having regard to
the general rule which applies to all cases of presumption,
ovinia rite acta prmsunuuitur, and to the particular force of
the rule as applied to cases of presumption in favor of
marriage and legitimacy, and against the commission of any
crime or offense ; and having regard also to the cases which
were cited in the argument, we are bound in this case to
presume that the father was consenting to the marriage,
and that it was therefore valid. The circumstance of the
marriage being expressed on the face of the register to be
with the consent of the mother, was relied on against the
l)resumption, but I think it more than probable that the
mother's consent was entered upon the register in conse-
quence of her having been present at the marriage, and at
all events the fact of her consent having been given would
not, I think, be sufficient to countervail the presumption
that the father was consenting also."

B.

I. A., claiming as the heir of B., seeks to recover from C. property of
B. It is proved that A. is B.'s cliild. The burden is on C. to show that
he is not the legitimate child of B.

The law presumes that every child in a Christian country
is jprima facie the offspring of a lawful rather than of a
meretricious union of the parents, and that consequently
the mother, either by actual marriage, or by cohabitation
and recognition, was the lawful wife of the father, and in
the absence of any negative evidence, no supplemental proof
of legal marriage will be necessary to legitimize the off-
spring.^

1 Harrison v. Mayor, 4 DeG. M. & G. 153 (1S53).

» Strode v. Magowan, 2 Uush, C27 (1SC5). And where a man epeaks of a cliild of
his aa his " daughter," the presumption is that she is legitimate. Gaines v. New
Orleans, 6 Wall. 6'JO (IS6T). And see Gaines v. Herman, '2-1 How. 553 (1S60).

108 PEESmiPTIVE EVIDEXCE. [rULE 21.

RULE 21. — A person proved to have been born during^
the continuance of a valid marriage between his
mother and any man, or within such time after the
dissohition thereof and before the celebration of
another valid marriage, that his mother's husband
could, according to the course of nature, have been
his father, is presumed to be the legitimate child of
his mother's husband.^

Illustration.

I. A woman was divorced from her husband July 11, 18G5. On Jilarch
7, 1866, she gave birth to a child. The presumption is that the former
husband was the father.*

lu accordance with the maxim 'pater est quern nupticB
demonstrat the rule is the same where the child is born in
wedlock, whether begotten before or after the marriage; ^
and where the mother is visibly pregnant at the time of the
marriage the presumption is held not to be rebuttable, for
it is said that a man who marries a woman whom he knows
to be in that condition is to be considered as acknowledgino;
by a most solemn act that the child is his.* As has been
said: *' This legal presumption that he is the father whom
the nuptials show to be so, is the foundation of every man's
birth and status. It is a plain and sensible maxim which is

1 Steph. Ev., art. 98; Stegall v. Stegall, 2 Brock. 256 (1825) ; Illinois Loan Co. v.
Bonner, 75 111. 315 (1874) ; Herring v. Goodson, 43 Miss. 392 (1870) ; Remington v.
Lewis, 8 B. Mon. 611 (1848) ; State v. AVorthingham, 23 Minn. 528 (1877) ; Bowles
V. Bingham, 3 Munf. 599 (1811) ; Patterson v. Gaines, 6 How. 550 (1848) ; Caugolle v.
Ferric, 23 N. Y. 90 (1861) ; Senser v. Bower, 1 Penn. 450 (1830) ; Diukius v. Samuels,
10 Rich. (L.) 70 (1850).

2 Drennan v. Douglass, 102 111. 345 (1882). And see State v. Romaine, 58 Iowa, 46
(1882). That the child was born eight months after the marriage does not overcome
the presumption. Phillips v. Allen, 2 Allen, 453 (18G1) .

3 Dcnnison v. Page, 29 Pa. St. 420 (1857). See dissenting of opinion of Lowrie,
J., in Page v. Dcnnison, 1 Grant's Cas. 379 (1859) ; R. v. Luff, 8 East. 198; State v.
Herman, 13 Ired. (L.) 502 (18.52); State v. Wilson, 10 Ired. (L.) 131; Montgomerj' r.
Montgomery, 3 Barb. Ch. 132 (1848) ; Bowles v. Bingham, 2 Munf. 412 (ISSl) ; 3 Munf.,
appendix. In Montgomery v. Montgomery, 3 Barb. Ch. 132 (1S48), it was held that the
admission of a lliird party that a child born after the marri;igc, but begotten before,
was his child and not that of the subsequent husband was not sulllcient to rebut the
presumption.

* R. V. Luff, 8 East, 198; State v. Herman, 13 Ircd. (L.) 503 (1852).

RULE 21.] MAUniAGE AND LEGITIMACY. 109

the corner stone, the very foundation on which rests the
wliole fabric of human society; and if you allow it once
to be shaken, there is no saying what consequence may fol-
low."^ By the ancient common law, if the husband was
within the four seas at any time during the pregnancy of
the wife, the presumption was conclusive that her children
were legitimate.^ This conclusive presumption of legiti-
macy was upheld, it has been intimated, from motives of
policy to protect the fruits of the profligacy of kings and
nobles from the peril of disinheritance. So far was the
principle carried that in one case it was decided tliat a child
born in England was legitimate, although the proof was
uncontradicted that the husband resided in Ireland during
the whole time of the wife's pregnancy and for a long time
l.>revious; while in another, where the husband resided in
Cadiz, the child was held to be a bastard, not because Cadiz
was further away from the residence of the wife, but because
Ireland was within the " four seas," while Cadiz was with-
out them. Nevertheless, the English judges, during many
rcin-ns, adhered to the rule in all its strictness and refused —
except in the case of a natural impossibility — to make any
inquiries into the paternity of a child whose mother's hus-
band was within the realm.' But this rule at length, " on
account of its absolute nonsense," as Mr. Justice Gross
termed it, was exploded. In 1807. in the case of King

1 Routlege v. Camithers, Nicholas Adult. Bast. Ifil.
s R. V. Murray, 1 Salk. 122; II. v. Allerton, 1 Ld. Kay. 122.

3 In Fletteshain v. Julian, Year Book, 7 Ilcn. IV. 9, decided in the seventh year
of the reign of Henry IV., Kickhill, J., said: " Cestui John fuit deins la mere 1'i.ssuc
fuit niulicr— for -who that bulleth my cow the calf is mine." The judicial language
of that d.ay was apt to be broad, but the judge was to furnish the great dramatist
with law for one of his tragedies: —

" Sirrah, your brother is legitimate,
Your father's wife did after wedlock bear him;
And if slie did play false the fault was hers.
Which fault lies on the hazards of all husbands
That marry wives. Toll mo, how if my brother
Who, as you say, took pains to get this son
Had of your father claimed this sou for his?
In sooth, good friend, your father might have kept
This calf, bred from his cow, from all the world."

King John, Act I., Scene I.

110 PRESUMPTIVE EVIDENCE . [rULE 21.

V. Liiffe,^ Lord EUenborough laid it down that the illegiti-
macy of the child might be shown where the Icgitimac}'" was
impossible, in the five cases : (1. ) Where the impossibility
arose from the husband being under the age of puberty. In a
case in the Year Books it was held that the issue was a bas-
tard where the husband was under fourteen years of age at
the time. (2. ) Where the impossibility arose from the hus-
band laboring under a disability occasioned by natural
infirmity. In FoxcrafC s C ase"^ an infirm bedridden man
was married in that state twelve weeks before his wife bore
a child. The child was adjudged illegitimate. (3.) Where
the impossibility arose from the length of time elapsed since
the death of the husband. (4.) Where the impossibility
arose from the absence of the husband — as where he was
outside the realm at the time the child was begotten.' (5.)
Where the impossibility was based on the laws of nature.
An example of this division is found in Whisterlo's case,*
where it was attempted to charge a black man as the father
of a white child borne of a mulatto woman. But in an
Illinois case, where a person's mother was an Indian, his
father being white, proof that he was a colored man was
held not to ov^ercome the presumption of legitimacy, for the
color would be inferred as being derived from the mother.^
Finally, in Pendrell v. Pendrell,^ it was held that it was not
necessary to show that the legitimacy was impossible. In
this case the husband and wife, after living together some
months, separated, she sta3ang in London and he going to
Staffordshire. After a separation of three years a child
was born. The evidence being strong that the husband had
not visited the wife during that time, the presumption of
the legitimacy of the child was held to be overthrown, and
he was declared illegitimate.^

1 8 East, 207.

s 1 Roll. Abr.

8 See R. V. Allerton, 1 Ld. Ray. 396.

* Cited in Cross v. Cross, 3 Paige Ch. 139.

t Illinois Loan Co. v. Bonner, 75 III. 315 (1874).

« 2 Strange, 925.

^ And see Goodright v. Saul, 4 Term Rep. 358.

RULE 21.] MARRIAGE AND LEGITIMACY. Ill

In Ilarrirave v. Ilargravc,^ Lord LangcLilc laid it dovrn
that the presumption thtit a chihl born of a married woman
16 legitimate may be rebutted by showing tliat the husband
was; (1) Incompetent ; (2) entirely absent, so as to have no
intercourse or communication of any kind with the mother ;
(3) entirely absent at the period during which the child must
in the course of nature have been begotten ; ( 4 ) only present
under circumstances affording clear and satisfactory proof
that there was no sexual intercourse. And in answer to
the House of Lords the judges laid down the rule thus :
Where a child is born in lawful wedlock, the husband not
being separated from his wife by a sentence of divorce,
sexual intercourse is presumed to have taken place between
the husband and wife, until the i)resumption is encountered
by such evidence as proves to the satisfaction of those who
are to decide the question that such sexual intercourse did
not take place at any time when by such intercourse the
husband could, according to the laws of nature, be the
father of the child. ^

In Head v. IJead,^ Leach, V. C, summed up the modern
English law in concise language. Said he : " The ancient
policy of the law of England remains unaltered. A child
born of a married W0man is to be presumed to be the
child of the husband, unless there is evidence which ex-
cludes all doubt that the husband could not be the father.
But in modern times the rule of evidence has varied.
Formerly it was considered that all doubt could not be
excluded unless the husband were extra quatiior maria.
But as it is obvious that all doubt may be excluded from
other circumstances, although the husband be within the
four seas, the modern practice permits the introduction
of every species of legal evidence tending to the same
conclusion. But still the evidence must be of a character

' 9Beav. 255 (1S4G).

* Answer of the judges to the seventh quoetioa in the Banbury Peerage, 1 Sim.
&Stu. 157 (ISll).

» 1 Sim. & Stu. 150 (JS23).

112 PEESOirTIVE EYIDEXCE. [rULE 21.

to exclude all doubt ; and when the judges in the Banhury
Case spoke of satisfactory evidence upon this subject they
must be understood to have meant such evidence as would
be satisfactor}'-, having regard to the special nature of the
subject." This is the law of both England and the United
States at the present time.

In answer to another question in the Banbury Case, the
judges replied: " That after proof given of access of the
husband and wife by which, according to the laws of
nature, he might be the father of a child, no evidence
can be received except to deny that such intercourse had
taken place." ^ In this rule it should be remembered that
" access" and "non-access" mean the existence or non-
existence of opportunities for sexual intercourse.^

"If sexual intercourse is ^jroved," said the chancellor
in Morris v. Davis,^ "that is, if the judge or the jury
trying the question of fact be satisfied that sexual inter-
course took place between the husband and wife at the
time of the child being conceived, the law will not permit
an inquiry whether the husband or some other man was
more likely to be the father of the child." If once you
are satisfied that the husband had sexual intercourse with
his wife, the presumption of legitimacy is not to be rebutted
by its being shown that other men also had sexual inter-
course with the woman. The law will not, under such
circumstances, allow a balance of the evidence as to who

1 Answer of the judges to the sixth question in the Banbury Peerage, 1 Sim. &
Stu. 157 (ISll) ; Wright v. Holdgate, 3 C. & K. 158 (1850).

2 Banbury Peerage, 1 Sim. & Stu. 159 (1811). Said Lord Eldon in the Banbury
Peerage (see 5 01. & F. 250) : "Lord Uale, in Hospell v. Collins, decided that the
issue for the jury was as to the fact of access, or, as I understand him to mean,
sexual intercourse. For the access iu question is of a peculiar nature, not being
access in the ordinary acceptation of the word, but access between a husband and
wife viewed with reference to the result, namely, the procreation of children."
"By 'access' I mean o))portunities of having sexual intercourse." Aldcrson, B.,
in Cope v. Cope, 1 M. & Rob. 275 (1833), "Access is such access as affords an oppor-
tunity ol sexual intercourse." Bury v. Philpot, 2 Myl. & K. ."19 (1835). Lord Lang-
dale in one case calls it "generating access," saying: "The absence of sexual
intercourse where there has been some society, intercourse or access, has been
called 'non-generating access.' " Hargrave v. Hargruvc, 9 Beav. 225 (1846).

3 5 CI. &F. 243 (1837).

RULE 21.] MARRIAGE AND LEGITIMACY. 113

is most likely to have been tlic father.^ The hiw docs not
permit the admission of evidence on the question whether
the adulterer or the husband is most likely to be the father
of the child. ^ So, -where the husband has had intercourse
or even "access," the bad rei)utation of the wife, either
before or after the marriage, does not overthrow the pre-
sumption.' Neither is the fact that tlie wife was living in
adultery.* In R. v. Inhabitanls of Mansfield,^ it appeared
that a wife was deserted by her husband, who went to live
with another woman; that the wife at the end of three or
four years married another man and had two children ;
that eleven years after the second marriage she again
cohabited with her husband. It not appearing where the
husband was between the time of his deserting and returning
to his wife, it was held that the evidence was insufficient to
show non-access when the children were begotten. ** The
qnestion is," said Lord Denman, "whether in this case
there be any evidence of illegitimacy, and to establish that
it is necessary to show non-access of the husband. That
may be proved by circumstances, one of which certainly is
an adulterous intercourse between the husband or wife and
another party. But here the whole proof consists only
of that fact. We are not told what the husband was doing
or where residins: at the time the children were begotten."
In Bernj v. Phil pot, ^ the wife of P. left him and went to
live with her father. Shortly after, her father dying, she
formed a connection with one H., with whom she went to
live. P. took a house opposite where they resided and
had frequent interviews with her. She had two children
during this time. It Avas held that they must be declared
legitimate. "Access," said the master, " if it is such access

1 Aldcrson, B., in Cope v. Cope, 1 I^I. & Rob. 275 (1833).

2 nemmeiiway v. Tosnicr, 1 Allen, '209 (1861).
s Phillips JJ. Allen, 2 Allen, l.iS (1S61).

4 Cases ante, and Cross v. Cross, 3 Paige Ch. 139; 23 Am. Dec. 778 (1S32).

' IQ. n..J44 (IMH).

« 2 Myl. & K. 341) (1834).

Hi PREStrXlTTIVE EVIDENCE. [RULE 21.

as affords an opportunity of sexual intercourse, and where
the fact of such access between a husband and wife within
a period capable of raising the legal inference as to the
legitimacy of an after born child is not disputed, proba-
bilities can have no weight, and a case ought never to be
sent to a jury. There is nothing against the evidence of
access except evidence of the adulterous intercourse of the
wife with H., which docs not affect the legal inference;
for if it were proved that she slept every night with her
paramour from the period of her separation from her hus-
band, I must still declare the children to be legitimate.
The interest of the public depends upon a strict adherence
to the rule of law." In Van Aerna^n v. VaiiAernara,^ the
wife of the plaintiff was for several years living in the
same town with him as the kept mistress of another person,
the husband making no exertions to break up the inter-
course. The court held that in the absence of evidence
of non-access the husband would be presumed to bo the
father of the children begotten upon the wife during that
time.

From proof of ♦* access " — as this word is used in this
connection — the presumption of sexual intercourse is very
strong. Ploives v. Berry ^^ affords a good illustration of
this. In that case B., who was married in 1829 became a
lunatic in 1833 and was confined in a lunatic asylum until
his death. His wife who lived twenty-five miles away, occa-
sionally visited her husband, but the keepers of the asylum
had strict orders not to allow them at any time to remain
alone together. He was allowed the freedom of the grounds,
and the porter sometimes being absent it was possible for a
person to enter without being seen. In March, 1835, she
visited the asylum, remaining alone for some time with her
husband. A child was born in Deceml)er, 1835. There
were rumors at the time that Mrs. B. was living in adultery

1 IBarb. Ch. 375 (J84fi).
« 31 L. J. (Ch.) 630 (1802).

RULE 21.] MxVRlIIxVGE AND LKUITIMACV. 115

with one D. But the court held that the ehild was legiti-
mate.^

Evidence of rumor that a person was illegitimate is itself
insufficient;^ though such testimony is admissible in con-
nection with other facts.^ In Kingy . Lufe^*^ it was held that
non-access of the husband need not bo proved during the
whole period of the wife's pregnancy — it was sufficient
if it was naturally impossible (as where he had access
only a fortnight before the birth) that he could be the
father.

That husband and wife slept together affords a strong and
irresistible inference of sexual intercourse.^ " But in the
absence of such irresistible evidence, the fact of sexual
intercourse must bo tried like every other fact to which no
direct evidence is applicable. Proof that the husband and
wife were living in the same town, and so had opportunities
of meeting, and, therefore, of sexual intercourse, would in
the absence of any proof raising a presumption to the con-
trary be sufficient to establish the legitimacy of a child born
of the wife." Proof that they had been in the same room
or in the same house together would be much stronger evi-
dence of the fact, the strength of which, however, would
vary with the circumstances ; and as neither would be
direct proof of sexual intercourse, but of facts from which,
taken by themselves, sexual intercourse would be inferred,
such inference must, as in all other cases, be capable of
being repelled by the proof of facts tending to raise a con-
trary inference."

But proof of access is not conclusive.^ It being only
proved that the opportunity for sexual intercourse had

1 See the corrected report of the case in 33 L. J. (Ch.) 347; and see contra Clarke
V. Mavuard,lMadd.& Gold. 304 (lS-:2).

» Vauyhn v. rdiodes, 2 McCord, 227 ; 73 Am. Dec. 713 (1S22)
3 Stegall V. blegall, ante.

* 8 East.

5 Lcgge V. Edmonds, 2.') I.. J. (Ch.) 125 (1S5G).

* Morris v. Davis, supra. •

' R. V. Inhabitants of MansHeld, 1 Q. B. 444 (ISU) ; Cope v. Cope, 1 M. & Kob.'275
(1S33) ; II. V. Shepherd, 6 Liuuey, 283 (18^1).

lin PRESUMrTIVE EYIDEXCE. [rULE 21.

existed — as that the parties lived in the same house — and
the fact itself not being proved, evidence is admissible to
disprove the presumption that it did take place. " The
parties may be followed with these four walls, and the fact
of sexual intercourse not onl^^ disproved b}^ direct testimony,
but by circumstantial evidence raising a strong presumption
against the fact," To state this principle briefly — the
proof of sexual intercourse being conclusive, the presump-
tion can not be attacked, but the evidence by which such
fact is to be established may be contradicted. The law is
not so unreasonable as to demand proof of non-access by
witnesses, who were with her every minute of the time
whenever she is supposed to have been begotten with a
child. If such facts and circumstances are proved, as
would induce a rational and well founded belief that the
husband could have no access, it is sufficient.^

On this question the conduct of the supposed father or
of the mother towards the child is relevant.^ In the case
of Morris v. Davies,^ the wife concealed the birth of the
child from her husband, and declared to him that she never
had such a child ; the husband disclaimed all knowledge of
it, and acted up to his death as if no such child was in
existence; the wife's paramour aided in concealing the
child, reared and educated it as his own, and left it all his
property by will. This repelled the presumption that the
child was legitimate.

In t\iQ Banhurij Peerage Case, Lord Redesdale said: "I
admit that tlie law presumes the child of the wife of A.,
born when A. mis^ht have had- sexual intercourse with her,
or in due time after, to be the legitimate child of A. ; but
this was merely considered a ground of presumption, and
might be met by opposing circumstances. The fact, indeed,
that any child is the child of any man is not capable of

1 Com. V. Wentz, 1 Ashm. 2C9 (1S08) ; Wright v. Hicks, 12 Ga. 155 (1332) ; State v.
Pettaway, 3 Hawks, 623 (1825).

•^ Cope V. Cope, 1 M. & Kob. 275 (1833).
3 5C1.&F. 163(1836).

KULE 21.] MAKUIAGE AND LEGITIMACY. 117

direct proof, and can only be the result of presumption,
understanding by presumption a probable consecjuence
drawn from facts, either certain or jn-oved by credible tes-
timony, by which may be determined the proof of a fact
alleged, but of which there can be no direct i)roof. * • *
It is, therefore, of high importance to consider in a question
of legitimacy whether the fact of such acknowledgment as
would demonstrate the legitimacy did take place; or
whether by circumstances such acknowledgment was ren-
dered impossible, as by the child being a posthumous child.
If, on the contrary, it appears that the supposed father was
ignorant of the birth of such a child, and that the fact of
its birth was concealed from him, such concealment is
strong presumptive proof that there had existed no sexual
intercourse which could have made him the father of such
a child."

So, the fact of the wife living in open adultery, coupled
with the facts that the husband had only on one single occa-
sion an opportunity for access, and that the wife concealed
the birth of the child from her husband, were held sufficient
to rebut the presumption of intercourse.^ And the illegiti-
macy of a child of a married woman is established beyond
dispute when it is shown that she was living in adultery at
the time it was begotten, and that her husband was residing
in a part of the country Avliich made access impossible.^

The presumption still holds where the parties are living
apart from each other by mutual consent; ^ but it is other-
wise where they are separated by a decree of the court, for
in such case the presumption is that they obey the decree.*
But the presumption, in the first case, is of course rebutta-
ble by proof of non-access.

1 Cope V. Cope, 1 M. & Rob. 275 (1333). The report of this case in 5 C. & P. GOl,
Is incorrect and misleading. Sec 1 Q. 15. -150, Lord Denman, C. J.

- The ISarony of Sale. 1 H. L. Gas. 507 (1S18) ; and see Guruey v. Gurney, 32 L. J.
(Ch.) 456 (1862).

3 St. George t-. St. Margarets, 1 Salk. 123; Sidney r. Sidney, 3 P. Wms. 275 (1S34) ;
Morris V. Davies, 5 CI. & F. 103 (1S57) ; Ilcmmiuway v. Towner, 1 Allen, 209 (lb61).
Id.

118 PKESUMPTIVE EVIDENCE. [rULE 21.

Noithor the declarations of the wife, nor her testimony
that the child was the child of a man other than her hus-
band, are admissible;^ nor of the wife that the husband
had not access or opportunities for access ; ^ nor of the
husband that he was not the father of the child,' or had not
access or opportunities for access.'* And this rule is not
altered by the modern legislation permitting parties to
" testify in their own behalf." ^ But where non-access has
been established, the declaration of the wife is admissible
to prove the paternity of the child. ^ And on an indictment
for bastardy or fornication, the wife is a competent witness
to prove the connection.^ But, although it is no longer
necessary that the legitimacy of the child must be
shown to be impossible, nevertheless, the presumption
can only be rebutted by proof beyond a reasonable
doubt that the husband could not have been the father.^
The onus lies on the person alleging that the child of a
married woman is illegitimate to prove it. There is no onus
on the party whose legitimacy is in question to show oppor-
tunities of access, or what the circumstances were under
which the access took place. ^

In a Louisiana case ^^ it was held that the legitimacy of a
child born in wedlock can not be contested by either the
mother, her heirs, or the child himself. The right in such

1 Stegall V. Stegall, 2 Brock. 257 (1S25) ; Pendrell v. Pendrcll, 2 Strange, 025 (1700) ;
Cope V. Cope, 1 M. & Rob. 276 (1833; ; Atchley v. Sprigg, 33 L. J. (Ch.) 345 (ISGl) ;
Stevens v. Moss, 2 Cowp. 59i; Uenuison v. Page, 29 Pa. St. 420 (1856) ; Com, v. Sliep-
herd, 6 Binney, 233.

2Com. t). Shepherd, 6 Binney, 283 (1814).

3 Id. ; Hemminway v. Towner, 1 Allen, 209 (1861).

* Wriglit V. lloldgate, 3 Cook, 158 (1850) ; King v. Inhabitants of Somton, 5 Ad. &
Ell. 180 (1836).

'■> Boykin v. Boykin, 70 N. C, 263 (1374) .

0 Legge V. Edwards, 25 L. J. Ch. 125 (1855).

' Com. V. Weulz, 1 Ashm. 269 (1808); Slate r. Peltaway, 3 Hawks, 673 (1825);
Com. r. Strieker, 1 Browne, i:LVlII. (1801); Whitman v. State, 34 lud. 312 (1870);
Com. V. Shepherd, 6 Binney, 213 (1841).

8 Phillips V. Allen, 2 Allen, 453 (1801) ; PIowcs v Bossey, 31 L. J. (Ch.) 6S0 (1S62) ;
Atchley r. Sprigg, 33 L. J. (Ch.) 345 (1864) ; Van Aernam v. Van A'irnam, 1 Barb. Ch.
375 (1S4G); Sullivan r. Kelly, 8 Allen, 118 (1861).

« Plowes V. BoRsey, 13 L. J. (Ch.) 680 (1862).
1" Eloi V. Mader, 1 Rob. 581 ; 38 Am. Dec. 192 (1841).

RULE 21.] MARRIAGE AND LEGITIMACY. 119

a contest abides only with tlie putative father. Said
Murphy, J. : *' The declarations of the plaintiff himself
cannot affect his condition, and are not to bo listened to.
It would be contra bonos mores to allow him to repudiate his
own legitimacy. Having been born in marriage, he can not
be permitted by any admission to bastardize him-
self. * * * The right to disavow and repudiate a child
born under the protection of the legal presumption 2)ater
est, etc., is peculiar to the father, and can be exercised only
by him or his heirs, within a given time and in certain cases.
If the father renounces the right, expressly or tacitly, it is
extinguished and can never more be exercised by any one.
The mother has no right to disavow a child, because
maternity is never uncertain ; she can only contest the
identity of the child. The right to disavow is entirely dis-
tinct and different from that which all parties whose inter-
ests may be affected have to contest the legitimacy of one
in whose favor the legal presumption does not exist."

In an old case, where a man was divorced from his wife
on the ground of his impotence, and then married another
woman who had issue during the marriage, the issue were
held to be his, on the ground, it was said, that a man may
be Jiabilis et inhahilis diversis temporib^is} This case is
interesting as showing how strong the presumption of
legitimacy was, and how averse the courts were (and are
now) to making exceptions to the rule.

1 Bane's Case, 5 Coke 98, b.

CHAPTEK VII.

THE PRESUMPTION AGAINST A SPOLIATOR.

RULiE 22 — The omission of a party to an action to tes-
tify to facts or to produce evidence in explanation of,
or to contradict adverse testimony, raises a presump-
tion ag^ainst liis claims,^ (A) unless tlie evidence is not
peculiarly within his power, (B) or is privileged. (C)

" It is certainly a maxim," said Lord Mansfield, mBlatch
V. Archer,^ " that all evidence is to be weighed according to
the proof which it was in the power of one side to have
produced, and in the power of the other to have contra-
dicted." The omission of a party to testify to facts within
his knowledge in explanation of or to contradict adverse
testimony, is a proper subject of consideration both in
courts of equity and in courts of law.^ "Where" said
Chief Justice Shaw, in Com. v. Wehsier^'^ probable proof is
brought of a state of facts tendino^ to criminate the accused,
the absence of evidence tending to a contrary conclusion
is to be considered — though not alone entitled to much
weight ; because the burden of proof lies on the accuser to
make out the whole case by substantiative evidence. But
when pretty stringent proof of circumstances is produced,

1 Thompson v. Shannon, 9 Tex. 536 (1853) ; Mitchell v. Napier, 22 Tex. 120 (1858) ;
The Lawrence, 15 Fed. Kep. G35 (1883) ; Warner v. Daniels, 1 Woodb. & M. 90 (1845) ;
Nicol V. Crittenden, 55 Ga. 497 (1S75). There is no presumption from a party not testi-
fyingasa witness in his own case. Emory V. Smith, 54 G a. 273 (1S75) ; Thompson v.
Davitte, 59 Ga. 472 (1877). Nor from a party failing to testify where the jiarty's mind
has become impaired. Cramer v. City of Burlington, 49 Iowa, 213 (1878). In a suit
against a married woman no presumption arises against lier from the fact that her
husband does not testify. Carter v. Keals, 44 N. II. 408 (1862). A false statement
made by a witness out of court raises no presumption that his testimony is false.
Glaze V. Blake, 56 Ala. 379 (1776).

'- Cowp. 63, and see Wallace v. Harris, 32 Mich. 380 (1875).

■"> McDonough v. O'Neil, 113 Mass. 92 (1873). The same inference frequently
arises on trials for crime. &eQ post, Chap, XX,

< SCush. 316 (1850).

(120)

I

RULE 22.] PRESUMPTION AGAINST A SPOLIATOR. 121

tending to support the charjjc, and it is apparent that the
accused is so situated that he could offer evidence of all
the facts and circumstances as they existed, and show, if
such was the truth, that the suspicious circumstances can
bo accounted for consistently with his innocence, and he
fails to offer such proof, the natural conclusion is that the
proof, if produced, instead of rel)utting would tend to sus-
tain the charge. But this is to be cautiously applied, and
only iu cases where it is manifest that proofs are in the
power of tiie accused, not accessible to the prosecution."

Illustrations.
A.

I. The question is whether vessel A. or vessel B. -whieh had collided
at uight was uegligent. The seaman who had charge of the light on ves-
sel A. is not produced; but the owners allege that it was displayed.
The presumption is that it was uot.i

II. B., as indorser, sues D. on a note given to one S. for a patent ma-
chine which turned out to be a fraud. D.'s defense is thatB. was a par-
ticipant in the fraud, having traveled with S. and aided him when he
procured the note fromD. The question is whether the B. referred to is
the plaintiff. B. refuses to appear at the trial. The presumption is that
B. the plaintiff and B. the partner of S. are the same person.*

III. A. refuses to produce a deed which is part of a title which he
cliiims. Tlie presumption is that if produced, the deed would injure
his claim.^

IV. The plaintiff relics on the defendants' knowledge of a fact said to
be communicated to them in a letter, of which no copy was kept, but
the receipt of which they (the defendants) admit. The defendants deny
tliat it contained the statement alleged, but do not produce the letter or
satisfactorily account for its nou-production. The plaintiff 's represen-
tation is presumed to be true.*

Y. B. agrees to make a Avagon for M. The latter gives L. a written
order upon B. for the wagon, which order B. receives, saying "he would
accept it as far as it went." On the trial B. refuses to produce the order.

1 The ViUc de n.ivrc, 7 Ben. 328 (1874).

- IJrown V. Schock, 77 Ta. St. 471 (1S75).

s Il.ikhinc V. Ilaivcy, 4 Rurr. 24SG (ITHO).

* Lumley v. Wagucr, 1 DeG. M. & G. 004 (1S52).

122 PRESUMPTI^'E EVIDEXCE. [rULE 22.

The presumption is that it Tvas an unconditional order for the delivery
of the wagon. ^

VI. In an action on certain promissory notes, the question is whether
the plaintiff had been given collateral security, and what amount he had
collected and should be credited, A list of these securities is proved
to be kept by the plaintiff in a book which he refuses to produce, on the
pround that the book is a private one which no one has the right to see.
Hi3 conduct raises a presumption that the book would contain evidence
unfavorable to his side of the case.^

VII. A party after notice refuses to produce an agreement. The pre-
sumption is that it is stamped as required by law.^

VIII. Certain goods were seized on a suspicion that they had been
fraudulently undervalued when passing the custom-house. The govern-
ment make a prima facie case, and notify the defendants to produce
their invoices and correspondence relating to the goods. This they do
not do, but introduce evidence of experts as to the value of the goods.
The presumption is against the defendants.*

IX. An action is brought by A. against B. on a building contract. A.
refuses to produce a plan referred to in the specifications annexed to
the contract, B. has refused to allow an expert sent by A. to examine
the house. The conduct of each raises an unfavorable presumption
against himself.^

X. A dealer in liquors sues a customer for liquor sold and delivered.
The only evidence is that of the dealer's servant, who proves the delivery
of full bottles to a certain number at the defendant's house — he does
not know their contents. The presumption is that they were filled with
the cheapest liquor in which the plaintiff dealt. «

XI. In an action for money lent the only evidence is that the defendant
having asked the plaintiff for some money, the latter handed him a note
which witnesses believed to be a bank-note, but the amount of which
they did not know; neither does it otherwise appear. The presumption
is it was a note of the smallest denomination in circulation in the coun-
try.^

XII. A drover is sued for the price of certain cattle entrusted to him
to be taken to market and sold. On the trial, lie gives no evidence as to

1 Barber v. Lyon, 22 Barb. 62 (1S56).

2 Lowell V. Todd, 15 U. C. C. P. 306 (1865) ; and see Page v. Stephens, 23 Mich. 357
(1871).

3 Crisp V. Anderson, 1 Stark. 35 (1815).

* Clifton V. United States, 4 How, 246 (1846) ; Attorney-General v. Ilalliday, 20 U.
C. Q. B. 307 (1817).

'" Bryant I'. Stillwell, 24 Pa. St. 314 (1855).
« Ciunnes v. Pczzcy, 1 Camp. 8 (1807).
' Lawtou V. Sweeney, 8 Jur. 694 (1844).

KULK 22.] niESUMmON AGAINST A SPOLIATOR. 123

^vhat he had received for them. The prcsumptiou is that he received the
•highest price paid for such cattle. ^

XIII. A witness refuses to explain matters within his knowledge.
The presumption is that the explauatiou, if made, would be to his pre-
judice.*

XIV. C. brought an action for S'iOO alleged to have been paid to B.
as usury. It appears that C. had agreed to pay B. §1,800 for a third per-
son; B. wrote out notes for $2,000, and upon C. objecting that the
amount was too large, B. replied: "There is our account and other
deals, all is put in." C. signed the notes and afterwards paid them. On
the trial, to show that there were no other accounts between them C.
called on B. to produce his books, which B. did not do. The court
instructed the jui-y that they might infer from this that the books, If
produced, would not aid in the defense. Held, correct.*

XV. The defendant in a case is represented by Ave attorneys. On a
motion for a new trial, on the ground that one of the jurors was related
to the plaintiff, four of these attorneys file an affidavit that they were not
aware of this fact beiore the trial. The presumption is that the fifth
attorney did know of it.*

In case II. it was said : " He refused to appear, and his
refusal is put now on tlie ground that he was informed by
his counsel and believes himself, that the testimony of his
identity was illegal. Supposing that to be an honest opin-
ion, yet it did not detract from the prima facie effect of
his declining to appear as evidence against him. If he
relics upon his ability to disprove the motive imputed he
takes the risk, but he leaves the effect of his conduct as a
matter of evidence for the opposite side to go to the jury
who must weiirh both sides to determine the real motive.
If he knew he was not the Brown who accompanied Simpson,
the accomplice, his motive Avas very strong to appear and
by his presence convince the witnesses that he is not the
same person called Brown who accompanied Simpson.
Omitting to do that by which he could at once dissipate
doubt, he leaves his motive to be determined by the jury,

1 Clark V. Miller, 4 Wend. 623 (IS.'^O).

2 Heath V. Waters, 40 Mich. 457 (ISTO).

3 Cross r. Bell,;J4 X. II. 82 (1S56).

* Brown v. Oattis, 55 Ga. 416 (1875).

124: PEESUMPTIVE EVIDENCE. [RULE 22.

fissuming the burden of disproving it b}^ rebutting testi-
mony."

In ca^es like ease III. it is laid down that the case of
written evidence presents the strongest ilhistration of the
extent of the rule. The non-production of documentary
evidence within the party's power raises, it is said, in several
cases, a very strong presumption that if produced it would
militate ao-ainst him who withholds it.^ Therefore in an
action of trespass where the plaintiff relied upon bare pos-
session although it appeared that he had taken the premises
under an agreement in writing which was not produced, the
judge charged the jury that having proved that he was in
possession of the close at the time of the trespass, the
plaintiff must have a verdict, but that to entitle him to more
than nominal damages, he should have shown the duration
of the term. In affirming this direction Maule, J., pointed
out that the plaintiff had the means of showing the quantum
of his interest and that " the non-production of the lease
raised a presumption that the production of it would do the
plaintiff no good." *

In Attorney- General Y . Dean of Windsor,^ the Master of
the Rolls said: "Evidence is always to be taken most
strongly against the persons who keep back a document,
and the circumstance that the body keeping it back is a
corporation does not in the slightest degree affect this prin-
ciple although it exonerates the present members from
blame in that respect. It is true it is urged that this deed
is lost, and that nothing of willful suppression is to be pre-
sumed against the predecessors of the present corporation,
and yet the circumstances undoubtedly require an explana-
tion which they can not now receive."

In case VIII. it was laid down as a general rule that
where a party, under an obligation to sustain his case by

1 Miller v. Jones, 32 Ark. 337 (1877) ; Grimes v. Kimball, 3 Allen, 518 (18G2) ; Bell v.
Hearne, 10 La. Ann. ."515 (1855) , Durgin v. Danville, 47 Vt. '.)2 (1874) ; Parks v. Kichard-
8on, 4 B. Mon. 27G (1S43) ; Mordecai v. Beall, 8 Port. 535 (J83'J).

* Tryman v. Knowles, 13 C. B. 222 (1853).

3 24Beav.679 (1807).

RULE 22,] rRESUMPTION AGAINST A SrOLIATOR. 125

proof, relics upon weak and inferior evidence which he
produces in the place of stronger and better evidence which
is witliin his power, and which he fails to produce, the i)re-
suniption arises that if he produced the latter it wouhl
injure instead of benefiting his case. " Under tlicsc cir-
cumstances," said Mr. Justice Nelson, " the chiiniant was
called upon by the strongest considerations, personal and
legal, if innocent, to bring to the support of his defense
the very best evidence that was in his possession or under
his control. This evidence was certainly within his reach,
and probably in his counting-room, namely, the proof of the
actual cost of the goods at the place of exportation. He
not only neglected to furnish it, and contented himself with
the weaker evidence, but even refused to furnish it on the
call of the government, leaving, therefore, the obvious pre-
sumption to be turned against him that the highest and best
evidence going to the reality and truth of the transaction
would not be favorable to the defense. One of the general
rules of evidence of universal application is that the best
evidence of disputed facts must be produced of which the
nature of the case will admit. This rule, speaking techni-
cally, applies only to the distinction betw'een primarj'' and
secondary evidence ; but the reason assigned for the appli-
cation of the rule in a technical sense is equally applicable,
and is frequently applied to the distinction between the
higher and inferior degree of proof speaking in a more
general and enlarged sense of the terms, when tendered as
evidence of a fact. The mcanins; of the rule is not that
courts require the strongest possible assurance of the matters
in question, but that no evidence shall be admitted which
from the nature of the case supposes still greater evidence
behind in the party's possession or power ; because the
absence of the primary evidence raises a presumption that
if produced, it would give a complexion to the case at least
unfavoral>le if not directly adverse to the interest of the
party. This is the reason given for exacting in all cases
the primary evidence, unless satisfactorily accounted for.

126 PRESUJITTIVE EVIDENCE. [llULE 22.

For a like reason — oven in cases where the higher and
inferior testimony can not be resolved into primary and
secondary evidence technically so as to compel the produc-
tion of the higher, and the inferior is therefore admissible
and competent without first accounting for the other, the
same presumption exists in full force and effect against the
party withholding the better evidence ; especially when it
appears or has been shown to be in his possession or power,
and must and should in all cases exercise no inconsiderable
influence in assigning to the inferior proof the degree of
credit to which it is rightfully entitled. It is well observed
by Mr. Evans ^ in substance that if the weaker and less satis-
factory evidence is given and relied on in support of a fact
when it is apparent to the court and jury that proof of a
more direct and explicit character was within the power of
the party, the same caution which rejects the secondary
evidence will awaken distrust and suspicion of the weaker
and less satisfactory; and that it may well be presumed, if
a more perfect exposition had been given it would have laid
open deficiences and objections which the more obscure and
uncertain testimony was intended to conceal." In Blach
V. Wright, it was said : " It is classed by writers upon the
law of evidence and presumptions as amongst the strongest
circumstantial proofs against a person, that he omits to
give evidence to repel circumstances of suspicion against
him, which he would have it in his power to give, if those
circumstances of suspicion were unfounded. Hence when
witnesses for example depose that the signature to a bond
is not in the handwriting of the person sued, and the obligee
and alleged obligor live near each other and in the imme-
diate vicinity of the place of trial, and the latter is a man
of extensive business whose handwriting is generally known,
and the former calls no witness to the point when he might
so easily do so, if the signature were genuine, the omission
affords the same kind of evidence against the deed that the

1 2 Evans' Pothier, 149.

RULE 22.] PKESUMmON AGAINST A SPOLIATOR. 127

omission of the possessor of stolen property, recently
stolen, to account for his possession does against him." ^

In case IX. the court referred to A.'s conduct as fol-
lows: "Maps, surveys and drawings are not to be distin-
guished from other papers in this respect. A party who
withholds them when he ought to produce them, and attempts
to supply their place by secondary evidence, is lial)lc to the
same presumption against him of trying to suppress the
truth as he would subject himself to by withholding paper
writing." And upon B.'s method of acting in the case, the
court animadverted at more Icnjjth. "Before the trial,"
said Black, J., who delivered the opinion, " the plaintiff
sent a person to examine the house so that he might be able
to testify how the work had been done. The witness
frankly explained what he came for and the defendant
refused to let him go through the house for such a purpose.
The evidence of this transaction was objected to, but the
court admitted it. The admission of it is complained of
here because it was calculated to prejudice the minds of the
jury against the defendant's cause. Doubtless it would
have that effect and so it ought to have. To smother evi-
dence is not much better than to fabricate. A party who
shuts the door upon a fair examination, and then prevents
the jury from learning a material fact must take the conse-
quences of any honest indignation which his conduct may
excite. The presumption in odium spoliatoris is per-
fectly legitimate. It is so natural and so just that it is
a part of every civilized code. We think this evidence
most clearly admissible and we certainly would not have
found fault with the judge if he had gone further and
instructed the jury that it afforded some ground for sup-
posing the whole defense to be unfair.'^ It ought to be
understood that where a party has the subject-matter of
the controversy under his exclusive control, it is never safe

' Black f. Wright, 9 Ired. (L.) 447 (1S49).

- Thcdefeuse was that the work ou the house liad been imperfectly and ncgli-
gcutly done.

128 PRESTOrPTIYE EVIDENCE. [rULE 22.

to refuse the witnesses on the other side an opportunity to
examine it unless he is able to give a very satisfactory rea-
son. Here there was no ground to believe that the witness
would misrepresent what he might see. If the defendant
had felt such a suspicion, he could have shown the house to
as many others as he chose, and overwhelmed the one per-
jured man by a host of honest ones. I ought to add, how-
ever, that such evidence must always be confined strictly to
the conduct of the party in and about the very cause in
which it is used. It must not only relate to the same
subject, but to the same investigation of it ; for it is received
not on any principle of primitive justice, but on the natural
presumption that he withholds the truth because he knows
that it will work against him, and that no man prefers dark-
ness to light, except because he is conscious that his deeds
are evil. If, therefore, the defendant should not refuse an
examination for the purpose of the next trial, he can not be
prejudiced by what he did before the last, etc. It is true,
also, that the strength of such a presumption diminishes in
very rapid proportion to the time that elapses between the
act out of which it rises, and the judicial inquiry which the
act was intended to influence."

Case X. is an illustration of the rule that where the ven-
dor of goods sold without any express stipulation as to
value neglects or refuses to give any evidence of their
value, they are presumed to be worth only the lowest price
for which goods of their description usually sell.

In case XI. it was said: " The handing of a note to a
party is prima facie evidence of a loan, and as there was
no proof of the amount of the value secured by the note,
the jury ought to presume it to have been the lowest in cir-
culation in this country.^

In case XH. it was said: " Tlie evidence as to the value
of cattle was somewhat contradictory, but it is to be borne
in mind that it was in the defendant's power to remove all

1 And see Ilayden v. llayward, 1 Camp. 180 (1808),

RULE 22.] PRESUJIPTIOX AGAINST A SPOLIATOR. 129

doubt on the subject, as they and they alone knew to whom
they were sold and for what prices. Under such circum-
stances it was the duty of the jury to allow the hidiest sum
which, according to the evidence in the case, they could
probably have been sold for."

In case XIII. it was said : " If defendant. Waters, had
performed the duty which common honesty required of him,
the production of his books would probably have made the
accounting brief and simple. It would also have put an
end to any question of fraud, if his conduct had been, as he
claims, what it should be. No stronger evidence of prob-
able fraud could exist than the obstinate and offensive man-
ner in which every attempt to get at the real state of the
partnership business was resisted, not only by Daniel
^Yaters, but by his associates and his banker. The latter,
who seems to have been honest in his remarkable notion
that banking business was privileged from scrutiny, was
probably free from any wrong design. The spirit of the
others is manifest. The effect of this scandalous conduct
was to protract the inquiry for several years, until, as is
now claimed, the books have been destroyed. And in this
condition of affairs defendant contends that his general
denials in regard to profits should exempt him from any
decree. And it is urged that by failing to have him pun-
ished for contempt or compelled to answer, complainant
lost the means of proof. We are certainly convinced that
it is to be regretted the conduct of defendant was not pun-
ished severely. But it is not very plain tons how far such
punishment would have advanced the accounting. Com-
plainant had the right to introduce the best evidence at her
command and make out as good a case as she could. Nor
do we think much attention should be paid to defendant's
testimony. The benefit of cross-examination is an essen-
tial condition to the reception of direct testimony. There
arc cases in which a failure to respond on cross-examination
will justify the exclusion of at least so much of t!ie direct
testimony as it might have qualified. It must always dam-

9

130 PRESUMPTIVE EVIDENCE. [rULE 22.

£i£:c its credit. "\Yhen the witness who evades or refuses
cross-examination is the chief party in interest, or one who
is plainly seeking to screen him, it is no more than com-
mon justice to disregard his testimony in his own favor
when it needs explanation. We may, and should assume,
that when he refuses to explain what he can explain, the
explanation would be to his prejudice. And when, as in
this case, his testimony is directly falsified by facts well
proved, the reasons for rejecting it are very strong."

In case xrv. it was said: *' The court charged the jury
that they might infer from the fact that the books were not
produced, that they would not aid the defense, if produced.
Upon this point there are many authorities, some of which
we will consider. Greenleaf says that the mere non-pro-
duction of books upon notice has no other legal effect than
to admit the other party to prove their contents by parol,
unless under special circumstances,^ and he cites Cooper v.
Gibbons,^ vtrhich sustains the position. Substantially to the
same point are Roscoe's Cr. Ev. ; ^ Life and Fire Ins. Co.
V. Mechanic Fire Lis. Co.,'^ /Symington v. McLin.^ In
Clifton V. United 8tates,^ goods had been seized upon sus-
picion of being fraudulently imported. On the trial it was
shown by the government that there was sufiicicnt ground
for the opinion of the court that probable cause existed for
the prosecution, and notice was given to the claimant to pro-
duce his books and accounts relating to those goods. This
he declined to do, and it was held to be proper for the court
to instruct the jury, if the claimant withheld the testimony
of his accounts and transactions with the parties abroad
from whom he received the goods, they were at liberty to
presume that, if produced, they would have operated
unfavorably to his cause. In Thayer v. Middlesex Mutual
Fire Lis. Co.,'' Shaw, C. J., says: 'The rule that upon

1 1 Greenl. Ev., sec. 37. * 1 Dev. & B. 291.

2 3 Cainp. .%3. « 4 How. 242.
8 p. 11. 7 10 Pick. 329.
* 7 Wend. 31,

KULE 22.] PKESUMl'TION AGAINST A SPOLIATOR. 131

the trial of controverted facts the part}' having the custody
and control of books, documents, and papers, shall, on
notice, produce them, and that on refusal to do so the
adverse party may give evidence of their contents, and that
all inferences from such secondary evidence shall be taken
most strongly against the party refusing to produce them,
is a highly reasonable and beneficial rule, tending to the dis-
covery of truth, and to the formation of honesty, frankness,
and fair dealing, and ought not to be shackled or obstructed
by strict constructions or technical niceties.' In Jackson v.
Mc Vey^ defendant gave general evidence that a deed which
was in court, in possession of the opposing party, who
refused to produce it, had been in the possession of a wit-
ness who was upon the stand, and the witness testified that
he had often perused the deed, even supposed that the
premises Avere included in it. But on cross-examination he
said that he could not recollect a single course stated in the
deed, and that he did not know, but thought the premises
were embraced in it. The circuit judge disregarded the
testimony, but the Supreme Court, on a motion for a new
trial, held that the testimony should have gone to the jury,
with strong intimations that they ought to believe that
the premises were included in the deed; since if they were
not, the plaintiff, by producing it, could show with certainty
how the fact was ; and that its non-production, the deed
being in court, was very strong presumptive evidence
against the plaintiff. The rule to be extracted from the
authorities would appear to be this, that when the books or
papers are shown to be in the hands of the opposing party,
but no evidence is given of their contents, the refusal to
produce them is not to be regarded as prima facie evidence
that, if produced, they would prove what the party calling
for them alleges they contain. In such a case there is no
legal presumption as to their contents. But where, after
notice and refusal to produce them, and it is shown or

1 18 Johns. 330.

135 PRESUMPTIVE EVIDENCE. [rULE 22.

admitted thnt the}- are under the control of the party, and
secondary evidence is given, and such evidence is imperfect,
vas^ue, and uncertain, every intendment and presumption is
to be made against the party who might remove all doubt
by producing the higher evidence. Before any presump-
tion can be made against the party on the ground of
refusal to produce, and having the possession of the books
or papers, some general evidence of their contents, as
applicable to the case, must be given. The alleged usury
in this case consisted in the addition of $200 to notes given
for a debt of $1,800; and upon tiie plaintiff 's objecting that
the notes were too large, the defendant replied: ' There is
our account and other deals — all is put in.' Now, although
this evidence might not be such as to raise a legal presump-
tion against the defendant, or to make out a prima facie
case that the books, if produced, would aid the plaintiff,
yet we think that after such evidence, and notice to the
party to produce the books, which appeared to be under
the control of the defendants, the jury might and would
infer, as a matter of fact, that the production of the books
would not aid the defense. Such would be the natural
effect upon the mind in considering such evidence ; and
unless, as matter of law, the court must say that such
inference shall not be drawn, the ruling must be sustained ;
for it was simply telling the jury that they might draw a
negative inference, which was a natural consequence from
the fact, and which in all probability they would have
drawn without any intimation from the court to that effect.
"We are aware of no rule of law, nor do the authorities show
that the jury might not take such a course. Upon the doc-
trine of Clifton V. The United /States, it would seem that
the cf)urt might have instructed the jury that a legal pre-
sumption arose in favor of the plaintiff ; but that is not the
question as presented by this case, and the ruling did not
go to that extent. So far, however, as the court went, in
the instructions given, we think that the authorities gener-

I

RULE 22.] PRESUMPTION AGAINST A SPOLIATOR. 133

ally will sustain the ruling, and that the defendants have no
good cause of complaint. It is not a case destitute of evi-
dence, and does not fall within the rule in such cases. The
plaintiff had shown that the payee of the notes had said in
effect that his account was included in the notes, and it was
this account that Avas called for, and if the books would
have aided the defendants they would no doubt have been
produced."

In Byaithwaile v. Coleman,^ which was an action by the
indorsee against the drawer of a note, the only evidence
of notice of dishonor was the statement of the defendant to
a witness. *♦ I have several good defenses to the action;
in the first place the letter was not sent to mo in time."
The defendant had been notitied to produce this letter, but
did not do so. Lord Lyndhurst directed the jury that they
might presume that the letter, if produced, would be found
to have contained a notice in proper time. On appeal
Denman, C. J., thought the direction right. " The defend-
ant admits," said he, «♦ he received the letter and as he does
not produce it, it might be fairly inferred by the jury that it
was in time." But the other members of the court were
of a contrary opinion, and a new trial was ordered. " The
letter," said Patteson, J., one of the majority, "might
have been dated on the proper day, but sent by private
hand or in some mode so that it did not arrive till many
days after; was the defendant therefore bound to produce
a letter which, on the face of it, would destroy his
owm case, and which he might not have evidence to
explain ? I think not ; and that it is not to be pre-
sumed against him from the mere non-production of
the letter, that the notice was sent in time." But
in the case of CurJewis v. Corjiehl,^ which six years later
came before the same court, and nearly the same judges,
a different conclusion was reached. The issue was as in the

1 1 narr & Woll. 220 (1805). J 1 Q. B. eu (Idll).

134 PEESmiPTIVE EVIDENCE. [rULE 22.

former case Tvhethcr the defendant had received due notice
of dishonor of a bill of exchange. There was evidence that
the day after the dishonor, the plaintiff wrote and sent a
letter to the defendant which was put in his letter-box, the
office beinsc closed. Some time after the defendant told
the plaintiff 's attorney that the bill had not been presented
in time, but said nothing as to the notice. The defendant,
though notified to produce this letter on the trial, did not do
so. It was held that the jury might presume that the letter
contained a regular notice of dishonor. In Bell v. Frankis^^
also an action by the indorsee against the drawer of a
bill of exchange, it appeared that the defendant had
told a witness that he expected to receive by post a
notice of its dishonor, and afterwards gave him a letter
he received by post, requesting hiin to negotiate a renewal
of the bill; but the letter, which had found its way into
the defendant's hands, was not produced at the trial. It
was ruled that the Jury were warranted in inferring that
no notice of dishonor had been given. ^

Where withholding testimony raises a presumption that a
fact not clearly proved or disproved exists, it is not error
for the court to allude to the fact of withholding as a cir-
cumstance strengthening the proof.^ But an instruction
that " everything may be presumed against the spoliator of
the will," has been held too broad.*

In Hammersmith, etc., li. Co. v. Brand,^ Lord Cairns, in
speaking of the measure of damage for annoyance arising
from the vibration of passing railway trains, said: " What
you have to find is what is the actual deterioration in value.
You have a certain house and near it what I may call a
vibrating railway — I mean a railway in the use of which
there can not fail to be vibrations — the house was of a cer-

1 4 Man. & Gr. 447 (1842).

a And see, Lobb v. Stanley, 5 Q. B. 574 (8144.)

3 Frick V. Barbour, 64 Pa. St. 120 (1870).

■• Bolt V. Wood, .'50 Miss. 136 (1878).

6 L. R. 4 11. L. 224 (18C9).

RULE 22.] PRESUMPTIOX AGAINST A SrOLIATOR. 135

tain valuo before the railway was put there ; if the railway-
causes vibration, evidence can easily be obtained to prove
what the amount of deterioration in valuo is, and the sum
can bo awarded accordingly. The subject may bo illus-
trated farther by supposing a house used for a particular
purpose, say that of a watch or clockmaker, which requires
particular steadiness, serious injury might bo done there,
and the house might become useless for the particular pur-
pose for which it was used before. But in addition to that
it is said you ought to know how many trains a day there
will be running and the weight of them, and the speed at
which they will pass. There is a well known principle
which applies to such cases which is that if the persons
against whom the claim is made are not w'illing to bind
themselves as to the maximum number of trains or the
weight or the speed, then the sum must be taken most
strongly against the company, upon the principles enunci-
ated in the well known old case of Armory v. Delamarie,
and the largest amount of injury which can bo sustained
would probably be considered to be the amount to be
awarded by the tribunal which has to award compensa-
tion."

B.

I. A. does not produce one of his muniments of title. He proves that
it is in the possession of B., from whom he can not obtain it. There is
no presumption against A.^

II. In a suit between C. and D. C. docs not call F., who was a witness
to the thing in dispute. There is no presumption against C. if it was
equally within the power of D. to call F.^

III. There is no proof that a part}' has withheld evidence. The non-
production of liettcr evidence, more full and deOuite than he presents,
raises no presumption against him.'

In cases like case I. the rule is that where the evidence
alleged to be withheld is unattainable, the presumption does

1 Gilbert V. Ross, 7 M. & W. 121 (1840) ; JIarston v. Downcs, 1 Ad. & Ell. 32 (1SS4).
= Scovill f. r.ahhvin, 20 Conn. 313 (It^GS;.
3 Schnell v. Toomer, 60 Ga. 168 (lb76).

136 PRESUMPTIVE EVIDENCE. [rULE 22.

not arise. Therefore, if a deed be in the possession of an
adverse party, and not produced, or if it be lost and
destroj'-ed, no matter whether by the adverse party or not,
secondary evidence is clearly admissible; and if the deed
be in the possession of a third person who is not by law
compellable to produce it, and he refuses to do so, the result
is the same. In Mericin v. Ward,^ an action for trover,
the defendants had notified the plaintiffs to produce their
books in which entries of the goods claimed were made.
The plaintiffs did not produce them, and the defendants
asked the judge to instruct the jury that this refusal created
a presumption against them, which ho refused. On appeal
his ruling was affirmed. *' Where a party," said Waite, J.,
'* has in his possession a deed or other instrument necessary
to support his title, and he refuses to produce it, and
attempts to make out his title by other evidence, such
refusal raises a strong presumption that the legitimate evi-
dence would operate against him. But this rule does not
apply to such documents as a party has no right to give in
evidence, without the consent of the adverse party. In this
case the action was trover. The plaintiff's books' were not
legal evidence in support of his title. Had he produced
them in compliance with the notice he could not have read
them to the jury without the defendants' permission. He
was, therefore, under no obligation to produce books which
the defendants might or might not give in evidence at their
pleasure. His refusal to produce them gave the defendants
a right to give secondary evidence of their contents and
nothing more. That right was conceded on the trial, but
such secondary evidence was not given. In this respect
there is no cause for complaint, and none is made. The
question is not what inference the jury might have drawn
from the books had they been produced ; or from the sec-
ondary evidence of tbe defendants had it been given, but
Vv'hether, in the absence of all such evidence, they were in

1 10 Conu. 377 (l&i3).

RULE 23.] PRESUMPTION AGAINST A SPOLIATOR. 137

law bound to raise a presumption a<2:ainst the plaintiff. A
presumption of "what? That the books contained entries
showing that the phiintiff had no title. It is difficult to see
what else they could presume against him. This surely
would be going too far."

"The circumstance," it was said in case II., "that a
particular person who is equally within the control of both
parties is not called as a Avitness is too often made the sub-
ject of comment before the jury. Such a fact lays no
ground for any presumption against either party. If the
witness could aid either party, such party would probably
produce him. As ho is not produced the jury have
no right to presume anything in respect to his knowl-
edge of any facts in the case."

C.

I. A. does not call B., who possesses important information concern-
ing the case. No presumption arises against A. if B. is A.'s professional
adviser, and the knowledge was professionally acquired. i

KULiE 23. — But the presumption arising from tlie non-
production of evidence within the power of the party
does not relieve the opposite party altogether from
the burden of proving his case.^

Illustrations.

I. On the trial of an action the fact sought to be proved by the pro-
duction of books and papers which the party in whose posscssi'in they
were was notitled to produce is, that a deed existed from one of the part-
ners of a firm to the Arm itself. The jury are not at liberty to consider a
refusal to produce the books and papers as u reason upon which to pre-
sume the existence of the deed.*

II. In an action on a fire insurance policy a party refuses to produce
books and papers in his possession after a notice to produce had been
duly served on him. This does not raise the presumption that, if pro-

1 Wentworth v. Lloyi, 10 H. L. Ca8. 589 (1SC4).

= Cooper r. Gibbons, 3 Camp. 3(i3 (1813) ; Attorney-General v. Lc Merchant, 3
Term Uop. 201.

» Uanson v. Eustice, 2 How. 653 (1864).

138 PEESUMPTIVE EVIDENCE. [ruLE 23.

duced, they would establish the fact which the party calling for them
alleges they would prove. ^

III. In an action on a policy of fire insurance, the defense is that the
preliminary proofs of loss were not as required by the terms of the policy.
The proofs are in the defendant's possession and they are notified to pro-
duce them, but refuse. The presumption does not arise that the papers
c ntained proper proof .^

IV. Certain defendants are sued for penalties in defrauding the gov-
ernment of revenue on whisky. The trial court instructs the jury that it
is a rule of law that where a party has proof in his power, which if pro-
duced would render material facts certain, the law presumes against him,
if he omits to produce it, and authorizes a jury to resolve all doubts
adversely to his defense. This is erroneous.'

In case I. it was said: "All inferences shall be taken
from the inferior evidence most strongly against the party
refusing to produce ; but the refusal itself raises no pre-
sumption of suspicion or imputation to the discredit of the
party, except in a case of spoliation or equivalent suppres-
sion. There the rule is that omnia proesumuntur contra
spoliatorem. In other words, with the exception just men-
tioned, the refusal to produce books or papers upon notice
is not an independent element from which anything can be
inferred as to the point which is sought to be proved by the
books or papers. Nor can any views of policy growing
out of the refusal be associated with the secondary evi-
dence to enlarge the province of the jury to infer or pre-
sume the existence of the fact to which that evidence relates.
For considerations of policy, being the source, origin, and
support of artificial presumptions, having no application to
conclusions as to actual matter of fact, the finding of a jury
in conformity with such considerations and not according to
their actual conviction of the truth, resolves itself into a
rule or presumption of law."

"The rule," said the court in case II., "is this. The
party in such a case may give secondary or parol proof of

1 Life and Fire Ins. Co. v. Mechanics' Fire Ins. Co., 7 Wend. 34 (1S31) ; Hector v.
Eector, 8 111. 120 (l.SJG).

2 Spring Garden Mut. Ins. Co. v. Evans, 9 Md. 1 (1856).
8 Chaffee v. U. S., 18 Wall. 616 (1373).

RULE 23,] rUESUMTTION AGAINST A SPOLIATOR 139

the contents of such books or papers if they arc sliown or
admitted to be in the possession of the opposite party, and
if such secondary evidence is imperfect, vague, and uncer-
tain as to dates, sums, boundaries, etc., every intendment
and presumption shall be against the party who might
remove all doubt by producing the higher evidence. But
they must be shown to bo in his possession, and some gen-
eral evidence of such parts of their contents as are applic-
able to the case must first be given before any foundation
is laid for any inference or intendment on account of their
non-production."

" There was no obligation on the defendant," it was said
in case III., " to show any defect in the preliminary proof
until the plaintiff had first made out fi prima facie case of
compliance with the requirements of the policy on that sub-
ject, which we think has not been done."

In case rv. it was said; <' The purport of this was to tell
the jury that although the defendants must be proved guilty
beyond a reasonable doubt, yet that if the government had
made out a prima facie case against them, not one free
from all doubt, but one which disclosed circumstances
requiring explanation, and the defendants did not explain,
the perplexing question of their guilt need not disturb the
minds of the jurors ; their silence supplied in the presump-
tion of the law, that full proof which should dispel all rea-
sonable doubt. In other words, the court instructed the
jury in substance that the government need only prove that
tho defendants were presumptively guilty, and the duty
thereupon devolved upon them to establish their innocence,
and if they did not they were guilty beyond a reasonable
doubt. * * * The error is })alpable in its statement.
All the authorities condemn it. * * * The instruction
sets at naught established principles, and justifies the criti-
cism of counsel that it substantially withdrew from the
defendants their constitutional right of trial by jury, and
converted what, at law, was intended for their protection

1-10 PEESUirPTIVE EVIDENCE. [rULE 24.

— the right to refu'^e to testify — into the machinery for
their sure destruction."

RUtiE 24. — The alteration, suppression, falsification,
destruction or manufacturing' of evidence raises a
presunii)tion against the spoliator, where the evidence
is relevant to the case (A), or it was his duty to pre-
serve it (B), — omnia prtesumuntur contra spoliatorem.

The maxim omnia proesumuntur contra spoliatorem em-
braces most frequently cases of the destruction of written
evidence. Manufacturing evidence also falls within this
rule, but it has been said that to smother evidence is not
much better than to frabricateit.^ " Spoliation," it is said
in one case,^ " is always looked upon by a court of justice
with suspicion." "The maxim," it is said in another,
" has been a most effective instrument in the hands of jus-
tice to punish wrong-doers." ^ " Whenever the rights of a
party are either withheld or violated, the presumption of
law is that damage has been sustained."* Presumptions
between a wrong-doer and a person wronged should be
made in favor of the latter.^

Illustrations.

A.

I. A chimney-sweep finding a jewel takes it to a goldsmith to learn its
value. The tradesman pretends that it is worth but three pence, when
the sweep demanding it back, he returns the empty socket without the
stone. In an action of trover by the sweep against the smith, there is

1 Black, J., ia Bryant v. Stillwell, 24 Pa. St. 314 (1855).

2 Little V. Marsh, 2 Ired. Eq. 23 (1841).

3 IIcslop V. Hcslop, 82 Pa. St. 53 (1876) ; Loomis, J., in Harris v. Rosenberg, 43
Conn, 227 (1875). "If tlie jury should be convinced of the spoliation, it would be
tho;rduty to infer anyihingin favor of the deed as against the spoiler. Diehl v.
Emig, G5 Pa. St. 328 (1870.)

* Tedder v. Stiles, IG Ga. 2 (1854).

6 Costigan V. Mohawk, etc., K. Co., 2 Dcnio, 600; 43 Am. Dec. 758 (1846) ; Stewart
r. Preston, 1 Fla. 10; 44 Am. Dec. 621 (1846) ; Jackson v. Miller, 6 Wend. 223; 21 Am.
Dec. 3ia (1830) ; Snyder v. Ililey, 6 Pa. St. 164; 47 Am. Dec. 452 (1847).

1

RULE 2i,] TRESUMPTIOX AGAIXST A SPOLIATOR. Ill

no evidence of the value of the stone. The law presumes that it was a
jewel of the finest water, of the size of the socket.'

II. Certain jewellers had lost from their sliop a valuable diamond
necklace consisting of fifty-six brilliants. Thirty of the stones, which
formed the Bides of the necklace, together with the large diamond which
was in its center, were traced to the possession of the defendant, and he
gave contradictory accounts as to how ho had obtained them. In an
action of trover for the value of the whole necklace, the jury may pre-
sume that the whole necklace had been iu the defendant's po.-scssiou.^

III. The plaintiff and the defendant having married two daughters of
one S., upon his decease some loose papers that concerned the accounts
between the defendant and S., were put up in a bundle, tied with a tape,
sealed in the presence of two persons, and delivered to him. An account
being subsequently decreed, the defendant charged the plaintiff with a
debt as due from the estate. It was proved that the defendant had
opened the bundle and had so altered and displaced the papers that it
could not be known what papers had been abstracted. The lord chan-
cellor disallowed his claim, although satisfied, as the defendant had
sworn, that all the papers had been produced, on the ground that in odium
spoliatoris omnia prcesumuntur .^

IV. A widow before her marriage with her second husband assigned
over an estate of the alleged value of £800 to trustees in trust, for her
children by her first husband. The second husband having obtained
possession of the deed and suppressed it, was ordered to pay over £800
instead of an account of the value being directed to be taken.*

V. A. is prevented by the acts of B. from showing the quality of wool
for the taking of which he had brought suit. B. is liable for the value of
the best quality of such goods.*

VI. A deed limiting a term is burnt by the defendant, who contends
that the limitation is void. Since tlie term might be limit<>d so as to
legally take effect, the presumption is that it was so limited. ^

1 Armory i-. Del.amirie, 1 Smith L. C. .3."i7; or in the words of the poet:
" And seeing by this wickedness the stoiic
Was made away and his worth known to none
Craftsmen there came to show by wciglit and tale
What gems of best an<l uttermost avail
Might in the compass of that ring be laid
With no less damage it should be paid
For wliatman hidcth truth in wrong-doing,
Against him the law dcemeth everything."

— [Leading Cases Done into English, Londor, 1ST6.

* Mortimer r. Craddock, 17 Jur. 4,5.

3 Wardour i'. Dcrcsford, 1 Veru. 452 (16'^7).

* Hunt f. Matthews, 1 Vcrn. -lOS (ICSO).
f r.ailoy r. Shaw, 24 N. If. :'00 (IS.il).

* Dalston w. Coatsworth, 1 P. Wms. 731 (1T21).

142 PRESUMmVE EVIDENCE. [RULE 24.

YII. A vendor of real estate seeks to avoid the enforcement of his
contract to convey on the ground that by its terms, time Avas of the
essence thereof, and bound the vendee to pay the purchase-money at a
specified time or forfeit his rights. Tlie vendee denies this. The fact
that tlie vendor destroyed the contract after being delivered to him by
his agent with whom it was deposited, and while the vendee was seeking
a deed from him, raises the presumption that the contract did not con-
tain such stipulations.^

VIII. Goods in a store are carried off and sold by a purchaser with
full knowledge that they had previously been mortgaged. The burden
of showing what proportion of the whole quantity taken was covered by
the mortgage is cast on him, and he is compelled to bear any loss arising
from the impossibility of ascertaining the exact quantity.*

IX. The obligor of a bond has obtained possession of it and destroyed
it. It will be presumed to have been given for a valuable consideration.^

X. The evidences of payment made to him upon a purchase of land
are destroyed by a party. Every presumption will be against him, and if
he offers to convey upon the payment of a given sum, at the time of such
destruction, the court will be fully warranted in finding that no more
than such sum was due after deducting such payments.*

XI. The defendant, in 1848, executed and delivered a deed of land to
the guardian of one M., which was never recorded. In 1875 the deed
could not be found. The defendant testified that it conveyed only five
acres of land; that the guardian, who had in the meantime died, took
the deed away with him, and that he had not seen it since. But the
weight of evidence showed that the deed conveyed forty acres, and that
after delivery it was returned to defendant to be recorded, and was by
him lost or destroyed. If it were necessary the presumption omnia
prcesumunter contra spoUcetorem would be applied. ^

XII. A. had caused B., who claimed the title and family estate, as
heir, to be kidnapped and sent to sea, and afterwards endeavored to
have him convicted on a false charge of murder. The court left it to the
jury whether "the presumptions arising from the kidnaping and the
prosecution for murder, do not speak stronger than a thousand wit-
nesses." They found in favor of B.^

XIII. An action is brought to recover of a steamboat the damages
received by a canal boat in a collision. The steamboat seta up as a

1 "Warren v. Crew, 22 Iowa, 315 (18fi7) ; and see Jackson v. McVcy, 18 Johns. ?31
(1320) ; Kent v. Bottoms, 3 Jones (Eq.), O'J (1850).

2 Preston v. Leighton, 6 Md. 88 (1854).

3 Carncal v. Day, Litt. Sel. Cas. 492 (1821).
■• Downingr. Plate, 90111.208 (1878).

6 Barney v. Secley, 38 Wis. 381 (1875).

e Annesley v. PLarl of Anglesea, 17 IIow. St. Tr. 1430 (1743) ; see Winchell v. Ed-
wards, 57 111. 41 (1870).

EULE 21.] rR^SUMFTION AGAINST A SPOLIATOR. 143

defense the extreme darkness of the ni;i;ht, and her master produces a
log book purporting to have been kept by him, which shows this. In
reljuttal evidence is introduced to show that the log book is false, and
had been written up for the purpose of the case. This raises a pre-
sumption against the defendant.'

XIV. An action had been brought by A. and his wife for injuries sus-
tained by the latter through B.'s negligence. Ou the trial, one W,
testifled that he, A., and C, a clerk of A.'s attorney, were together at
A.'s house, when A. said that if "W. would give evidence as to the acci-
dent he should share the verdict; A. knew that W. was not present at
the accident, and C. said if W. would not testify, he, C, would get other
witnesses. Two other witnesses testified to similar proposals made to
them by C, but not in A.'s presence, to give false evidence. A. was not
present at the accident, and neither he nor C. had been called as wit-
nesses. The evidence was admissible.'

XV. It is shown that a sealed certificate, which if genuine should
have a genuine seal, is stamped with a false one. This raises a very
sti'oug presumption that the signature is false. ^

XVI. In an account book of one M., offered in evidence, there was
this entry: "June 30, IS59, P. W. Sterling, credit by cash, $135." It
appeared that in October of that year M. had altered this entry by cross-
ing with ink the word " by " and making it read " to," and changing the
word " credit " and making it read " debtor," without the knowledge or
consent of Sterling. The pi'csumption is that at the time the entry was
made it was true, and that Sterling is entitled to a credit of $135.*

" The jiuy were justified," said, Tindal, C. J., " in case
II., as against an evident wrong-doer, in coming to the
conclusion to which they did come. The case is I think
stronger than that of Armory v. Delamirie.^^ (Case I.).

In case XIII., it was said : *' This conckision disposes of
the case ; for in a conflict of evidence such as the case pre-
sents the production of a fabricated log warrants the rejec-
tion of the testimony which it is brought to support. If
possible it ought never to happen that a case sought to be
supported by a fabricated log-book should succeed; and
while charges of this kind are not to be listened to unless
based upon strong evidence, if they are supported by testi-

1 The Tillio, 7 Ben. 3S2 (1874).

= Moiiiirty r. London, etc., 11. Co., L. R. 5 Q. B. 314 (1S70).

3 Peoiilo f. Marion, 29 Mich. 31 (1S74)

* Sheils V. West, 17 Cal. 324 (ISCl).

144 rEESUMPTIVE EVIDENCE. . [PJJLE 24.

mon}' and remain unans^'cred in the evidence, they com-
pel an adverse decree."

"The conduct of a party to a cause," said Cockburn,
C. J., in case XIV., " may be of the highest importance in
determining whether the cause of action in which he is phiin-
tiff or the ground of defense, if he is defendant, is honest and
just; just as it is evidence against a prisoner that he has
said one thing at one time and another at another, as show-
ing that the recourse to falsehood leads fairly to an inference
of guilt. Anything from which such an inference can be
drawn is cogent and important evidence with a view to the
issue. So if you can show that a plaintiff has been sul)-
orning false testimony, and has endeavored to have
recourse to perjury, it is strong evidence that he knew per-
fectly well his cause was an unrighteous one. I do not say
that it is conclusive; I fully agree that it should be put to
the jury with the intimation that it does not always follow,
because a man not sure he shall be able to succeed by
righteous means, has recourse to means of a different char-
acter, that that which he desires, namely, the gaining of
the victory, is not his due, or that he has not good ground
for believing that justice entitles him to it. It does
not necessarily follow that he has not a good cause of
action, any more than a person's making a false statement
to increase his appearance of innocence is necessarily a
proof of his guilt ; but it is always evidence which ought
to be submitted to the consideration of the tribunal which
has to judge of the facts."

The maxim is an old rule of the court of chancery.^
*' "Where deeds or writings are suppressed," it was said as
early as 1C)77 ^^ omnia prcesumunfiir, etc., and he who has
committed iniquity shall not have equity." ^ In equity the

1 Cookes V. Hellier, 1 Ves. sr. 235 (1740).

2 Gartsidc v. Il.ilcliff, Chao. Cas. 293 (Ki""). " The court," it was said in a North
Carolina case (Ilaly burton v. Kershaw, 3 Dessau. 105 (1810), " will go very far ni
presuming against those who destroy papers and instruments necessary to the
security or elucidation of therights of others inodium spoUatoris, as it is expressed,
even where the spoliation is done unadvisedly and not fraudulent."

RULE 24.] rr.ESUMPTION AGAINST A SrOLIATOU. 115

suppression of documentary evidence always raised the
presumption that it would, if produced, show something
unfavorable to the party withholding it.^ And where a
defendant swore that he had burnt a deed, but afterwards
produced it, he was compelled to admit it as laid in the
bill.^ And in chancery, although the court would not decree
on the testimony of a sino^le witness against the express
denial on oath of the defendant, yet where the written
evidence had been destroyed by the defendant ^;ea(7e?i^e lite,
the court would assume that if forthcoming, it would have
proved the statement of the single witness.^ If a woman
about to marry, parts with part of her property or gives
a security or assessment without the knowledge of her
intended husband, this is a fraud on his rights which equity
will relieve.* But a debt contracted for valuable consider-
ation is not within this rule. Nevertheless where a husband
failed to set aside a bond given for a valuable consideration
by his "wife before his marriage, the chancellor on the
ground of the concealment from the husband thought it a
proper case to refuse costs against him.^ So a court of
equity will entertain jurisdiction on complainant's oath of a
trespass done secretly and hard to be proved, as the digging
of one man underground into another's minerals,® or the
trading of an interloper to the West Indies in violation of
another's charter.' So w'here bailiffs who had served an ex-
ecution found hidden in the barn a sum of money which
they carried away, the oath of a party injured was held
sufficient to charge the spoliators,^ and so where a person
ran away with a casket of jewels belonging to another.^

i Owen V. Flack, 2 Sim. & Stu. 606 (lS-:6).

2 Sausam r. Uarasay, 2 Veru. 561 (1706) ; Ilanipdeu v. Hampden, 1 Erown P. C.
250.

« Gray t'. flaig, 20 Beav. 219.

* Lady Strathmoie v. Bowes, 1 Ves. 22.

<> Blanchct i: Foster, 2 Ves. sr. 205 (1751).

e East India Co. v. Sandys, 1 Vern. 127 (16S2).

' Jd. ; East India Co. v. Evans, 1 ^■el•n. 303 (1084).

8 Childrciis v. Saxby, 1 Vern. 207 (1CS3).

« East India Co. v. Evans, 1 Vern. SOS (16S4).

10

11(3 TEESOIPTIVE EVIDENCE. [rULE 24.

In an anonymous case in Lord R<iymond,^ it was said by
Chief Justice Holt, that if a man destroy a thing that is
desifi'ned to be evidence ao^ainst himself a small matter will
supply it, and the defendant having torn up his own note
signed by himself, a sworn copy was admitted to be good
evidence to prove it. In King v. Arundel,^ it was held
that where title deeds are suspected to have been suppressed
or withholden by the defendants or those under whom they
claim, the court of chancery will decree that the plaintiff
shall hold the lands until the deeds are produced.^ In
Leeds v. Cook,^ where a letter had been written by the
plaintiff to a witness and the latter had been served with a
suhpcena duces tecum to produce it, but the plaintiff had
previously procured it from the witness, and refused to pro-
duce it, it was held that parol evidence of its contents was
admissible. It was objected that the plaintiff had received
no notice to produce it. Bat Lord Ellenborough said:
" It belonged to the witness called, and was subtracted in
fraud of the subpoena, as therefore, the plaintiff secreted it,
and refused to procure it, in odium spoliatoris parol evi-
dence of its contents should be admitted." Other
instances of the application of the maxim are to be found
in the mercantile law, in the rule that where a drawee of a
bill of exchange destroys a draft presented to him for
acceptance he is liable thereon as if he had accepted it ; ^
and the principle that a person who wrongfully takes or con-
verts a note to his own use by negotiating it is liable for its
full value.®

In an action of ejectment by the heir against a devisee,
the testator's competency was disputed. The defendant,
after proving that the testator had given a reasonable
account of the real property left to him by his father,

1 Rep. 731.

2 Hob. 109, Dalston v. Coatsworth, 1 P. Wms. 130 (1721).

8 See in explanation of this case, Cowper v. Cowper, 2 P. Wms. 749.

* 4 Esp. 250 (1803).

6 Jenne v. Ward, 2 Stark. 327 (1819).

« Decider v. Matthews, 12 N. Y. 313 (1855).

RULE 2-i.] rRESUMmON AGAIXST A SPOLIATOR. 1^7

offered in confirmation thcix'of to put in his fiithcr's will,
which was in court. The plaintiff objected to its admission
and it was withdrawn. In summing up, Cockburn, C. J.,
adverted to the fact, and told the jury that they might
infer from the plaintiffs objecting to the will being put in
that it was conformable to the statement made by the tes-
tator. On appeal this direction was approved by the full
court. Williams, Crowder, and Willes, J.J.^

"Where the exact contents of a will can not be ascer-
tained, if it has been destroyed or suppressed by a person
interested in opposition thereto, the court or jury in odium
spoliatoris will be authorized to presume many things as
against the party who has been guilty of the fraudulent
act."^ It has been held that where the question was
whether a former will had been revoked by a will made
subsequently, the contents of which it was alleged differed
from those of the former will (the later will not being pro-
duced the exact difference did not appear) evidence of spo-
liation on the part of the claimant under the former will,
would raise the presumption that it had been revoked by
the later will.^ In Jones v. Murphy'^ it was said: "If,
therefore, on another trial, the ]Mvy should find tha factum
of a subsequent will, and that this will was destroyed or
withheld by fraud, they may, and, as I conceive, are bound
to infer that the second will contained inconsistent disposi-
tions with the first; nay, more in odium spoliatoris^ that
the second will contained a clause expressly revoking all
former wills. In point of law it must be regarded as a will
subsisting at the death of the testator, so as to operate as
a revocation of all former devises. It is far better that
there should be an intestacy than that a spoliator should be
rewarded for his dishonest v." Where a letter which, it

1 Sutton V. Davenport, 27 L. J. (0. P.) 51 ;1S5).
- Betts V. Jackson, 0 Wend. 173 (1830).
» Ilarwood r. Goodright, Cowp. 91 (1774).
* 8 W. &S. 301 (1844).

14 S PRESUMPTIVE EVIDENCE. [jlULE 24.

was claimed ■was part of a will, was destroyed by the uni-
versal legatee, the maxim was applied.^

I. A., a trustee, fails to preserve his vouchers for disbursements and
expenses. The presumption is against A.'s claim. ^

II. A confidential agent who is bound to keep regular accounts neg-
lected to do so, and to preserve vouchers against himself, though he has
preserved those in his favor. He is not permitted in equity to recover
for his charges as solicitor.^

III. The agent of a candidate for Parliament has destroyed the accounts
and records of a contested election. The candidate being the respond-
ent in the proceedings, the strongest conclusions will be drawn against
him, and every presumption made against the legality of the acts con-
cealed by such conduct.**

IV. In an action on the bonds of a corporation it is denied that the
corporation was properly organized. A minute book, offered in evidence
to show its oi'gauizatiou, and the regularity of the issue of the bonds
disappears pendente lite. It is traced into the hands of the ofGcers of the
alleged corporation, but its whereabouts is not shown. The presump-
tion is that it has been concealed because of the evidence which it would
show of the legality of the organization and the validity of the bonds.*

V. A trustee destroys a trust instrument. The presumption is that it
contained matters prejudicial to his interest.^

YI. In the settlement of a partnership the partner who made the pur-
chases being called on to produce the original invoices, pi-oduces some,
but not all; those produced show overcharges. The presumption is that
the others if produced would have shown similar overcharges.'

The duty of a trustee or of an agent in charge of prop-
erty to keep regular and correct accounts is imperative. If
he does not every presumption of fact is against him. He
can not impose upon his principal or cestui que trust the

1 Lucas V. Brooks, 23 La. Ann. 117 (1871).

2 Landis V. Scott, 32 Pa. St. 498 (18.5'.)).

3 White V. Lincohi, 8 Ves. 263 (1803).

* Hunter v. Lauder, 8 Canada L, J. (n. S.) 17 (1S72).

6 Rigg3 V. Pennsylvania 11. Co., 16 Fed. llep. 8U4 (1883).

6 Jones V. Knauss, 31 N. J. (Eq.) 609 (1879).

' Bush r. Guiou, 6La. Ann.797 (1851). For a recent application of the maxim
where in a contest between i)artners it was thown that one partner had suppressed
and destroyed evidence, see Pomeroy v. Beuton, 77 Mo. 64 (1SS2).

RULE 24.] niESUMrTION AGAINST A SrOLIATOR. 119

obligation to prove that ho has actually n^ceived what he
mio'ht have received, and what it was his duty to endeavor
to obtain. By failinj^ to keep and submit accounts, he
assumes the burden of repelling the presumption and dis-
proving negligence and faithlessness." ^

" If," said Nixon, J., in case IV., "I was obliged to
put the ultimate determination of the suit upon these ques-
tions, I should draw unfavorable inferences from the con-
duct of the officials of the company in regard to the book,
and should be quite willing to assume that it had been put
out of the way because it contained proof of material facts
which the defendant corporation was anxious to suppress."

In case V. it was said : " His position is one where he is
liable to the most unfavorable presumptions. He has
unquestionably betrayed his trust, and the court is bound
to apply to him the maxim in odium spoliatoris omnia
prcesumuntur. If a person is proved to have destroyed a
written instrument, a presumption arises that if the truth
had appeared, it would have been against his interest, and
that his conduct is attributable to his knowledge of this
circumstance, and accordingly slight evidence of the con-
tents of the instrument will usually in such a case be suffi-
cient."

If a party having charge of the property of others so
confounds it with his own that the line of distinction can not
be traced, all the inconvenience of the confusion is thrown
upon the party who produces it, and it is for him to dis-
tinguish his own property or lose it. If it be a case of
damages, damages are given to the utmost value that the
article will bear."^ So a party wilfully mixing his goods
with those of another person is bound to prove which are
his.'

1 Landis v. Scott, 32 Pa. St. 498 (1859).

•■> Hart V. Ten Eyck, 2 Johns. Ch. 103 (ISIG) ; Ryder v. Hathaway, 21 Pick. 293
(183S).

3 Loorais r. Green, 7 Me. 3S6 (1S31). Several cows belonging to different owners
break into a private ganlcu and di> damage. The presumption is that each cow did
an equal amount of damage. Parteuheimert-. Van Order, 20 Barb. 479 (1855).

150 PRESUilPTIYE EVIDENCE. [RULE 24.

In international law the princi[)le of the maxim is carried
very far. " It is certain," said Sir William Scott in TJie
Hunter y^ " that by the law of every maritime court of
Europe, spoliation of papers not only excludes further
proof, but does per se, infer condemnation, founding a
presumption Juris et de jure, that it was done for the pur-
posed of fraudulently suppressing evidence which if pro-
duced would lead to the same result ; and this surely not
without reason, although the leniency of our code has not
adopted the rule in its full vif^or, but has modified it to
this extent that if all other circumstances are clear, this
circumstance alone shall not be damnatory, particularly if
the act were done by a person who has interests of his own
that might be benefited by the commission of this injurious
act. But though it does not found an absolute presumption
juris et de jure, it only stops short of that, for it certainly
generates a most unfavorable presumption. A case which
escapes with such a brand upon it, is only saved so as by
fire. There must be that overwhelming proof arising from
the concurrence of every other circumstance in its favor,
that forces a conviction of its truth in spite of the powerful
impression which such an act makes to its entire reproba-
tion." In the subsequent case of TJie Johanna Emelie^
Dr. Lushington stated the rule in the English admiralty
courts more particularly. "It has been said," said he,
*' that the master is entirely discredited by various circum-
stances and the fact principally relied on in the circumstance
of his having denied that there was any spoliation of
papers. I must say a word as to the spoliation of papers
generally before I apply myself to the fact. I do not know
that there is to be found in any of Lord Stowell's judg-
ments any direct definition of the word ** spoliation." I
am of opinion that the mere destruction of papers is not
under all circumstances to be considered a spoliation ; I say
under all circumstances, because it might be carried to a

1 1 Dods. Aam. 430 (1815). s 18 Jur. 703 (1855).

RULE 24.] rRESUJIPTION AGAINST A SrOLIATOR Ijl

very absurd length. I apprehend it mi^ht be said, if at any
time during a long voyage the master destroyed papers that
had no relevancy to it relating to a former voyage, the
matter would not be put in issue. To say that was a spolia-
tion of papers would be going the length of sayino' that
nothing in the nature even of a private letter was to be
destroyed after the vessel had left her port. I am not,
however, disposed to relax the practical effect of the rules
laid down by Lord Stowell, because they are consistent
with good sense, and with justice to all parties; but they
must not be pressed beyond his true intention with refer-
ence to all the facts of the case.^ * * * jjj jy^g Eising
Sun,^ Lord Stowell lays down the doctrine that spoliation
does not enure to condemnation ; with other suspicious cir-
cumstances, it shuts the door against further proof. To
that doctrine I entirely assent." The English and not the
continental rule^ is the law of the United States. «' Con-
cealment or even spoliation of papers," said Mr. Justice
Story in The Pizan^o,^ " is not of itself a sufficient ground
for condemnation in a prize court. It is undoubtedly a
very awakening circumstance, calculated to excite the vio^i-
lance and justify the suspicions of the court. But it is a
circumstance open to explanation, for it may have arisen
from accident, necessity or superior force ; and if the party
in the first instance fairly and frankly explains it to the
satisfaction of the court, it deprives him of no right to
which he is otherwise entitled. If, on the other hand, the
spoliation be unexplained, or the explanation appear weak
and futile; if the cause labor under heavy suspicions, or
there be a vehement presumption of bad faith or gross pre-
varication, it is made the ground of the denial of further
proof, and condemnation ensues from defects in the evi-
dence which the party is not permitted to supply."

> Citing The Hunter, 1 Dods. Adm. 430; The Two Brothers, 1 Rob. Adm. 131; The
Poll)-, 2 Hob. Adm. 361.
= 2 Rob. Adm. 104.
' Sec note 2 Wheat. 24i.
* 2 Wheat. 241 (1S17).

152 PRESUMPTIVE EVIDENCE. [rULE 25.

RULiE 25. — The fact of spoliation standing alone may
defeat a claim, but of itself can not sustain a claim.

Where the spoliator is the claimant, the fact of spoliation
alo7ie raises a presumption against his claim. Thus in
Asl'eio V. OdenJieimer^ it was said: "We may take the
rules of evidence to be well established that where a deed,
a will, or other paper is proved to be destroyed or sup-
pressed, or there is vehement suspicion of its having been
done, the presumption in ocUitm sjioUatoris applies in favor
of the party who claims under such paper, though the con-
tents are not proved. The fact of spoliation, suppression,
or embezzlement may be proved by the answer or oath of
the opposite party. So may the contents of the paper; the
same rule applies to matters of account ; the mere embez-
zlement of books of account is sufficient to authorize a
rejection of claims by the spoiler though supported by evi-
dence, or the party spoiled may rebut the claim by his
oath."

But where it is sought to charge the spoliator, some evi-
dence besides the mere fact of spoliation is necessary ; in
other words, the suppression or destruction of the evidence
does not relieve the opposite party from the burden of
proving his own case.^ " I do not remember or believe,"
said the ]\Iaster of the Rolls in Cowper v. Cowper,^ " that
there has been any case where there was not some proof
made of the existence of the deed or writing supposed to
be suppressed or destroyed." "All cases for relief against
spoliation come," said Lord Hardwicke, in Saltern v. Mel-
Tiursli,^ *' in a favorable light, but notwithstanding the rule
that things are to bo taken in odium spoliatoris^ yet it
ought to have no other consequence but this, that where the
contents of the deed destroyed are proved, the party shall
have the same benefit as he would if the deed itself was pro-

1 1 Bald. 390 (n83).

2 Bott V. Wood, 56 Miss. 136 (1878),
s 2 P. Wms. 748 (1734).

* Amb. 248 (1754).

RULE 25.] PRESUMPTION" AGAINST A SPOLIATOR. 153

duccd." Ill Askeio v. Odenheimer^ it was .said: "But
■when ho comes to charge the spoiler in account, in order to
raise a debt against hira, he must give some evidence
beyond the fact of spoliation, his oath would be admissible
in evidence, its effect depending on the circumstances of
the case. If he relics on other evidence he must make out
a prima facie case by proof competent for a court of equity
to presume a court of law to give a judgment on a demurrer
to the evidence, or a jury to find a verdict in favor of the
charge set up. This is what is understood by some evidence^
it may be slight, j'ct if it conduces to prove the charge it is
legally sufEciont, its weight or credibility is a matter of dis-
cretion and circumstance. No specific sum can be charged
aijainst the spoiler on proof of the mere fact of spoliation;
herein the rule differs from that which applies to a claim of
property under a deed or will on which the right depends
and the thing claimed is ascertained." ^ This doctrine has
been considered at greater length under a previous rule
(Rule 23), in discussing the presumption arising from the
withholding of evidence.

In Bott V. Wood^ the court say : '* The principle of the
maxim omnia prcesumuntur in odium spolialoris, as applic-
able to the destruction or suppression of a written instru-
ment is that such destruction or suppression raises a
presumption that the document would if produced militate
against the party destroying or suppressing it, and that his
conduct is attributable to this circumstance, and therefore
slight evidence of the contents of the instrument will
usually in such a case be sufficient. There is great danger
that the maxim may be carried too far. It can not prop-
erly be pushed to the extent of dispensing with the neces-
sity of other evidence and should be regarded as mere
matter of inference, in weighing the effect of evidence in
its own nature applicable to the subject in dispute."

1 Supra.

- Askew V. Odenhcimcr, 1 Bald. SCO (1S31).

S5G Miss. 130 (1S7»).

15-1 rr.ESUMPTivE evidence. [eule 26.

RULE 2G. — But t!ie preswmption in disfa\'or of a spol-
iator does not arise where the document concealed
or destroyed is otherwise proved in the case (A) or
the spoliation is open and for cause (B).

Ilhistration.

A.

I. The contents of a paper arc proved by witnesses. The paper is
withheld by the custodian. No presumption arises against him.

In JSoU V. Wood, ^ it was said: "The doctrine is that
unfavorable presumption and intendment shall be against
the party who has destroyed an instrument which is the
subject of inquiry in order that he may not gain by the
wrong. But where there is express and positive evidence,
there is no place for presumption or inference. It is only
in reference to the contents of a paper destroyed or with-
held that the maxim can have application, and where the
contents are proved there is no occasion for resort to the
maxim. In this case, if the evidence of B. was sufficient
to satisfy the jury as to the terms of the will in dispute, a
resort to the maxim under consideration was unnecessary."

B.

1. In an action of ejectment the defendant, John Coyle, claimed under
a contract to purchase from Philip Coyle and Mary his wife. There
was no evidence that the contract had been acknowledged by the wife as
required by law; but it remained in her possession until destroyed by
her in the presence and with the assent of both her husband and the
defendant. This destruction did not raise the presumption that it had
been properly acknowledged by the spoliator.''

"Conceding," said Lewis, C. J., in case I., "that the
destruction of the article was unauthorized, it is clear that
without an acknowledgment by Mary Coyle according to
law it could have no legal operation against her or her
heirs after the death of her husband. There was no secret

1 56 Miss. 136 (1878).

» Milteubergcr v. Coyle, 27 Pa. St. 170 (1856).

I

RULE 2G.] PRESUMPTIOX AGAINST A SPOLIATOR. IjO

act of spoliation. All parties in interest were present and
John Coylo was sent for specially on the occasion. His
acquiescence may be inferred from his omission to make
opposition by word or deed. There is, therefore, nothing
to authorize a presumption that the article had been
acknowledored by Mary Coyle separate and apart from her
husband."

The presumption does not extend beyond the thing taken
or suppressed. In Harris v. Rosenberg,^ the defendants
entered the store of the plaintiff and carried off a quantity
of different kinds of goods. The proof not being definite
as to the quantity and value of the goods taken, the trial
court ruled that the largest quantity and the highest value
were to be taken as the true measure. On appeal, this
was held erroneous. *'As we construe the finding," said
Loomis, J., ** in connection with the fact that judgment was
rendered for all the plaintiff demanded in his writ, the prin-
ciple of presuming the highest value and the largest quantity
docs not seem to have been limited to the precise thing or
things otherwise proved to have been taken. * * * A
proper application of the rule to the case at bar may
be illustrated as follows : If it was proved that the
defendants took a piece of silk, and the plaintiff claimed
that it was of the best quality and highest price and con-
tained so many yards, and the defendant, w^hile denying
the alleged quantity, quality, and price, would not produce
it in court or allow it to be examined and measured, it
would furnish a very strong inference against him ; but
the fact of taking the silk would not of itself justify the
court in presuming that he took the fur caps or other
things mentioned in the declaration, and that they also
were of the finest quality and highest price. The pre-
sumption we are considering is, of course, to be distin-
guished from one arising from opportunity to take the
goods, coupled with other circumstances calculated to fastea

1 43 Conn. 227 (1S75).

15G PEESUMPTIVE EVIDENCE. [llULE 26.

the guilt upon the defendants ; as, for instance, if certain
goods were known to have been in the store just previous
to the defendants' entry, and were found missing soon
after, and no persons other than the defendants and those
acting with them were known to have entered the store
without permission or to have had opportunity to take the
goods, the court might properly infer that the missing
goods went off by the same hands that were proved to
have taken a part." Therefore, before the presumption
can arise it should be clearly proved that the document
destroyed by the party was the one alleged.^

The presumption of course is not conclusive. In Thomp-
son V. Tliom'pson^ the court instructed the jury as follows :
"If the jury believe from the evidence that the plaintiff
burnt or in any way destroyed any of the papers of the
deceased, without the knowledge and consent of those who
were interested in the estate of said deceased it devolves on
him to show by proof other than his own statements what
those papers contained; and on his failure to do so, the
law raises the presumption against him that they were of
the highest value to the defendant in this suit, and entitles
her to a verdict." In the Supreme Court on appeal it was
said; *' It is undoubtedly true that a party who destroys
the evidence by which his claim or title may be impeached
raises a strong presumption against the validity of his
claim. And if the plaintiff destroyed papers of the estate,
and especially receipts for taxes, which are important docu-
ments, involving in many instances the validity of a title, he
committed a great wrong ; but yet the presumption against
him would not be of that conclusive character indicated by
the instruction. The jury were told in effect that if the
plaintiff destroyed any papers of the deceased, the defend-
ant was entitled to a verdict. The law of nations as reco^;-
nizcd in Continental Europe, under certain circumstances,
raises a conclusive presumption against the spoliator of

1 McRcynolds v. McCord, 6 Watts, 288 (1837).
s 9 lad. 323 (1857).

EULE 27.] PRESmirTIOX AGAINST A SPOLIATOR. lo7

papers indicating the national character of a vessel ; bat
even that rule docs not ordinarily prevail in England and the
United States. This rule has no place in the courts of
the common law. On proof of the existence of a paper the
testimony of a party Mho ought to have the custody of it
touching its loss, with evidence of diligent search for it is
addressed to the court. If its loss is established he is
allowed to go to the jury with evidence of its contents.
But his adversary may prove that he has withheld or de-
stroyed it, and if he satisfactorily establish that point,
every presumption will be indulged against him in refer-
ence to its character."

RULE 27. — The voluntary destruction of a document
raises prima facie a presumption of fraud, and pre-
cludes the spoliator from giving secondary evidence
of its contents, in the absence of a legal excuse for
its destruction.

lllust7Xitions.

I. A. sues on a note which he alleges B. gave him, but which note he
has burnt up. A. can not prove his alleged debt.^

II. An action is brought for a libel contained in a letter written by B.
to a woman to whom J. was at the time engaged to be married. On the
trial J. testified that the day before his marriage he burned the letter,
and had no copy. He can not be allowed to repeat the contents from
memory.'

III. A party has mutilated a paper by tearing off a writing attached
to it. He can not prove its contents by parol.^

In case I. it was said: ' " The proof is that the plaintiff
deliberately and voluntarily destroyed the Dote before it
fell due and there is nothing in the case accounting for or
affording any explanation of the act, consistent with an
honest or justifiable purpose. Such explanation the plain-
tiff was bound to give atfirmativelv, for it would be in viola-

1 Blade V. Nol.ind, 12 Wend. 173 (1S34).

2 Joannes v. Bcnuctt, 5 Allen, IG'J (1SG2).

3 Price V. Tallmau, 1 N. J. (L.) 147 (1794).

158 PRESU3IPTIVE EVIDENCE [rULE 27

tion of all the principles upon which inferior and secondary
evidence is tolerated to allow a party the benefit of it
who has wilfully destroyed the higher and better evi-
dence. * * * I believe no case is to be found where,
if a party has deliberately destroyed the higher evidence
without explanation showing affirmatively that the act was
done with pure motives and repelling every suspicion of a
fraudulent design, that he has had the benefit of it. To
extend it to such a case would be to lose sight of all the
reasons upon which the rule is founded and to establish a
dangerous precedent. We know of no honest purposb for
which a party, without any mistake or misapprehension,
would deliberately destroy the evidence of an existing debt,
and we will not presume one. From the necessity and hard-
ship of the case, courts have allowed the party to be a com-
petent witness to prove the loss or destruction of the
papers; but it would be an unreasonable indulgence, and a
violation of the just maxim, that no one shall take advan-
tage of his own wrong to permit this testimony when he
has designedly destroyed it."

In case II. it was said: "This (permitting the second-
ary evidence) we think a violation of the cardinal principle
that where it appears that a party has destroyed an instru-
ment or document the presumption arises that if it had been
produced it would have been against his interest or in some
essential particular unfavorable to his claims under it.
Contra spoliatorem omnia prcBsumuntur. In the absence
of any proof that the destruction was the result of accident
or mistake or of other circumstances rebutting any fraudu-
lent purpose or design, especially where, as in the case at
bar, it appears that the paper was voluntarily and design-
edly burned by the parly who relies on it in support of his
action, the inference is that the purpose of the party in
destroying it was fraudulent, and he is excluded from offer-
ing secondary evidence to prove the contents of the docu-
ment which he has by his own act put out of existence.
If such were not the rule, and a party could be permitted

RULE 28.] PRESiniPTION AGAINST A SPOLIATOR. 159

to testify to the language or purport of written papers
which he had wilfully destroyed in support of his right
of action against another, great opportunities would be
afforded for the commission of the grossest frauds. A per-
son who has wilfully destroyed the higher and better evi-
dence ought not to be permitted to enjoy the benefit of the
rule admitting secondary evidence. lie must first rebut
tiie inference of fraud which arises from the act of a vol-
untary destruction of a written paper, before he can ask to
be relieved from the consequences of his act by introduc-
ing parol evidence to prove his case."

RULE 28. — That the destruction was the result of mis-
take, accident, or some fault not amounting to a
fraud, furnishes a "legal excuse" within Rule 27.

Illustrations.

I. A. receiving the amount of a promissory note in bills, destroys the
paper. He afterwards discovers that the bills are forgeries. In an action
on the note, A. may give evidence of its contents. ^

II. B. destroys a note thinking that it is a receipt. In an action
thereon B. may give secondary evidence of the contents of the note.^

III. T. sues S. for breach of promise of marriage. Letters from S. to
T. containing the offer of marriage have been destroyed by T . on the
advice of a sister that they would not be needed. T. is allowed to prove
their contents. ^

Formerly secondary evidence of a document not pro-
duced at the trial was allowable only where the writing had
been destroyed by inevitable accident, or was withheld by
the opposing party.* But in late years this rule has been
relaxed, and it is now only necessary to prove that his inca-
pacity to produce it is not attributable to a positive fault
involving a fraud. '^ The naked fact of a voluntary destruc-

1 See Riggs v. Tayloe, 9 Wheat. 4S7 (1S24).

2 Id.

3 Tobin». Sh.nw, 45 Mo. 344 (ISoS).

♦ Villars r. Villars, 2 Atk. 71. Opinion of Chancellor Lansing in Livingston v.
Rogers, 2 Johns. Gas. 4SS (1S02).

* Livingston v. Rogers, Id.; Jackson f. Woolsey, 10 Johns. 453 (1S14).

IGO PRESUMPTIVE EVIDEXCE. [kULE 28.

tion of a document raises such a presumption of fraud as
to preclude all secondary evidence of its contents by the
spoliator.^ Therefore, one who has voluntarily destroyed
written evidence will not be permitted to give secondary
evidence of it until he has in some way — as by showing
that it was done by mistake or accident — repelled the infer-
ence of fraud arising from the destruction.

"When the plaintiff," said the court in case III., " was
induced to suppose that her letters from the defendant
would not be used in a trial of a suit against him in her
favor, and she yielded to the advice of a sister in whom she
had reposed umlimited confidence that it would be desirable
that they should not be exposed to the perusal of those who
would read them, in her opinion, to gratify a feeling of
curiosity, unmingled with any sympathy for her; perhaps,
too, from a wish not to be reminded by their existence of
what she, at the time of their receipt, regarded as a pledge of
affection, followed by the unwilling conviction, from his
coldness at least, so wounding to her sensibility, that a
change had taken place in him in regard to herself, or that
he was always untrue, can it be said that this is a case so
unlike that when a loss of writing has occurred by accident
or mistake, that the contents of such letters can not be
shown by oral testimony when they have been destroyed.
May not her acts in committing them to the fire be treated
as a misapprehension, an accident, a misfortune? "

Where one person deprives another by fraud of the pos-
session of written instruments which belong to him, the
latter may bring suit on them, and may give secondary evi-
dence of their contents.^

1 Bagley V. McMickle, 9 Cal. 449 (185S) ; Speer v. Spcer, 7 Ind. ITS (1855) ; Wilson
V. Cassidy, 2 Ind. 502; Parker v. Kane, 4 Wis. 1 (1S55) ; Broadwell v. Stiles, 8 X. J
(L.) 58 (1824) ; Blake v. Fash, 44 111. 304 (1807) ; Henderson v. Uoke, 1 Dev. & B. 119
(183C).

2 Grimes r. Kimball, 3 AUen,518 (1862); Almy v. Reed, 10 Gush. 421; Hedge v
McQuaid, 11 Gush. 352.

PART III
I ■

* PRESUMPTIONS OF CONTINUANCE

AND UNIFORMITY.

11 ( IGl )

I

CHAPTER Till.

THE PRESUMPTION OF THE CONTINUANCE OF THINGS
GENERALLY.

RULE 29. — Possession or o^VIle^ship of cither realty or
personalty (A), non-possession or loss (B), debts (C),
and other conditions of propei'ty or thinjfs (D), once
proved to exist, are presumed to continue until the
contrary is shown. ^

Illustrations.

A.

I. It is proved that at a given time B. was seized of certain land.
The presumption is tliat such seizure continues and the burden is on him
who alleges a disseisin.^

II. Certain land is devised to executors with power to sell. If no con-
veyance from them is shown, the presumption is that they did not exe-
cute the power.'

III. It is proved that a promissory note was given for consideration ou
November 2, 1848. In an action brought in 1854, the note is not pro
duced, on the ground that it is missing and can not be found after diligent
search. Secondary evidence of the note may be given, for the presump-
tion is that it still exists unpaid.*

A note once proved to have existed, it was said in ca.«e
III,, is presumed to exist still, unless payment be shown or

1 Gould v. Norfolk Lead Co., !) Cush. 333 (1852) ; Garner v. Green, 8 Ala. 06 (1S15) ;
Kidder v. Stevens, 60 Cal. 415 (ISS-i).

= r.rown V. King, 5 Mete. 173 (_1S42) ; and see Sullivan v. Goldman, 19 La. Ann. 12
(1867) ; Leport v. Todd, 32 N. J. L. 128 (1866) ; Currier v. Gale, 9 Allen, 522 (1865) ;
Klione V. Gale, 12 Minn. 54 (1866) ; Grayv. Finch, 23 Conn. 513; Winklcy v. K:iime, 33
K. n. 268 (1S55) ; Pickett v. Packham. L. R. 4 Cli. App. 100 (1868) ; Smith r. Ifardy, 36
Wi#. 417 (1874) ; Harriman v. Queen Ins. Co., 49 Wis. 71 (18*0) ; U. S. r. De Coursey,
1 Pinney (Wis.) 508 (1815) ; Ilaubon v. Chitovitc.h, ISNev. 395 (1878) ; lluuterv. Beu-
nett, 15 La. Ann. 715 (1860).

8 Jackson r. Potter, 4 Wend. 672 (18:^0).

■• Hell V. Young, 1 Giant's Cas. 175 (1854).

(1G3)

1G4 PRESU3JPTIVE EVIDENCE. [eULE 29.

other circumstances from which a stronger counter pre-
sumption arises. It is not necessary for the creditor to
prove that the debt is not paid or discharged. The burden
of showin2j that it is rests on him who alloires it. And
■svhen diligent search has been made, unsuccessfully, by the
person in whose hands the law presumes it to be, it is in
judgment of law a lost paper, and secondary evidence is
admissible of its contents."

"Where a person is proved to be the owner of personal
property with the present right of possession, the presumj)-
tion is that he continues to be owner with the right of pos-
session, until there is evidence that he has parted with that
ownership or right of possession, and the mere fact that
the property is in the possession of another, with his con-
sxmt, does not raise a legal presumption of change of title
so as to shift the burden of proof upon the original owner
to show that he retains his right of property and his right
of possession therein.^

Whenever the possession of one i^erson is once shown to
have been in subordination to the title of another, it will
not be adjudged afterwards adverse to such title, without
clear and positive proof of its having distinctly become so ;
for every presumption is in favor of the possession contin-
uins: in the same subordination to the title. ^

B.

I. In an action of replevin, it is proved that a tenant was evicted
from his possession. The presumption is that he continues out of pos-
session .^

II. The question is the admissibility of secondary evidence of a docu-
ment. It is proved that two years ago diligent search was made for the
document, but it could not be found. The presumption is that it is still
lost, and secondary evidence is admissible.*

1 Wells, C. J., in Magee v. Scott, 9 Gush. 148 (1S51).

2 Hood V. Hood, 2 Grant's Gas. 229 (1858).

3 Saunders r. Springsteen, 4 Wend. 429 (1830).
* Poe V. Darrah, 20 Ala. 289 (1852).

RULE 29.] CONTINUANCE OF THINGS GENEKALLY.

1G5

C.

I. A statute authorizes the issuance of an attachment ui)oa the filing
of an alliilavit .showin;^ the existence of the debt, etc., at the time of tlie
application. Au allUlavit is made on October 5th, showing a debt, etc.,
on that day, but it is not filed till October KJth, when the attachment is
applied for. The presumption is that the debt is unpaid on the lOlh,
and the attachment is properly issued. ^

II. A debt was due from A. to B., in January, 18GG. In November, 1865.
A. admits the debt, and in ISCZ B. brings suit for it. The prusurap-
tiou is that the debt is still due.^

III. To prove a debt against a bankrupt, an entry in his boolis some
months before the banl^ruplcy showing that he was indebted to the
claimant in a certain sum is proved. The presumption is that the debt
still continues.^

In case I. it was said : *' The affidavit having shown the
debt to be existing and past due on the 5th of October, the
legal presumption would follow that it remained due on the
IGth of October. If a debt was shown to exist, but not
due, after the day of its falling due, there might perhaps
arise a legal presumption that the debtor had complied with
his contract and paid as per agreement. But when it is
once established that there has been a breach of contract,
and the debtor has failed to pay at the right time, we are
induced to think there is a fair legal presumption arising
that the debt continues due and unpaid until something is
shown to the contrary, or there is such lapse of time as to
raise a contrary presumption."

In case II. it was argued that the presumption was that
the debt was paid when it became due. But the court said :
"The fact that the debt had not become payable at the
time the defendant admitted its existence docs not take the
case out of the general rule. Pajmient being an affirmative
fact to be done or performed by the defendant was for the
defendant to prove."

The payment of a debt is evidenced by a receipt under

1 O'Xeil f. New I'ork, etc., Mining Co., 3 Xev. 141 (ISCT).

- Farrr. Payne, 40 Vt. GI5 (1S68).

3 Jaclisou V. Irviu, 2 Cami). lb (1S09).

16G rrvESUMrTm: evidence. [rule 29.

seal — v.'bich is conclusive, making an estoppel — or a sim-
ple receipt which is prima facie evidence and rebuts the
presumption of the continuance of the debt. Other cir-
cumstances which render the payment probable may also
rebut tho presumption -^ as for example, the settlement of
accounts between the parties subsequent to the accruing of
the debt, in which settlement no mention of the debt is
made,^ or a receipt for subsequent debts. ^

D.

I. Goods are delivered in a good condition to A., a carrier, ■who
delivers them at the end of his route to B., another carrier. At the end
of B.'s route they are discovered to be damaged. In an action against
B. the presumption is that he received them in good condition and the
burden is on him to show that he did not.^

II. A box containing several pieces of cloth addressed to Fon du Lac,
Wis., was delivered at Jamestown, N. Y., to the Atlantic and Great West-
ern R. Co. This carrier transported it to Mansfield, Ohio, and delivered
it to the Pittsburg and Ft. Wayne R. Co., who carried it to Chicago and
delivered it to the Chicago and North Western R. Co., vrho carried it to
Fon du Lac. When the box was opened at Its destination several pieces
of the cloth were missing. There was no proof in whose hands the box
was when the theft occurred. In an action against the Chicago and
Korth Western R. Co. for the value of the missing pieces, hdd, the box
being found to be intact when it was delivered to the lirst carrier, the
presumption is that it continued so, until the contrary is shown, and
the defendant (the last carrier) is liable.*

III. A vessel is proved to be seaworthy (as to chains, cables, etc.),
when she left port in June, 1835. On December 16th she is wrecked,
and arrives in port December 24th without sufficient cables, etc. The
presumption is that she was sufficiently equipped on December 15th. ^

IV. A guest sues an inn-keeper for the loss of packages containing
money and securities of great value, which he had given, sealed in an
envelope, to his clerk, to be deposited in the safe. The inn-keeper denies
that the envelope contained that amount of money. It is proved that
shortly before that time the guest was seen with this money in his pos-
session. The presumption is that the guest had such money at the time
he alleged he had given it to the clerk ."^

1 Colsell V. Bndd, 1 Camp. 27.

« Beet Ev. sec. 400; aw j)ost. Cap. XV.

3 Smith V. New York Central R. Co., 43 Barb. 225 (1804).

* LauRhlin v. Chicago, etc., li. Co., 23 Wis. 204; 9 Am. Kop. 403 (1871).

<> Martin v. Fishing Ins. Co., 20 Pick. 389 (183S).

6 Wilkins v. Earlc, 44 X. Y. 172 (J870).

RULE 29.] CONTINUANCE OF THINGS GENERALLV. 1G7

V. It is shown that a decree in chancery Tras rendered at a certain
time. There is no evidence that it has been reversed or annulled. The
presumption is that it is still in force.'

VI. The question is whether a certain custom existed Intlie year 1840.
The jury fluds that the custom existed in 1689, without more. The pre-
sumption is that the custom exists in 1840.^

*♦ The property," as was said in case I., ♦' was placed in
the bands of the Western Railroad Company in good order
and condition, and until the contrary is shown must be pre-
sumed to have continued in that condition while in the pos-
session of that company. It was delivered by the defendant
after being transported over its road from Albany to
Rochester, in a damaged condition, and the further pre-
sumption naturally follows that it received the injury while
in the possession of the defendant. The general rule is that
things once proved to have existed in a particular state, are
to be presumed to have continued in that state, until the
contrary is established by evidence either direct or pre-
sumptive. Unless the rule is to be applied to goods deliv-
ered, to be transported over several connecting railroads,
there would be no safety to the owner. It would often be
impossible for him to prove at what point, or in the hands
of which company, the injury happened. But give to such
party the benefit of the presumption that the goods he has
delivered in good order in such case continued so until they
came to the possession of the company which delivers them
at the place of destination in a damaged condition, and his
ricrhts will bo completely protected. The burden is then
shifted upon the latter company, of proving that such goods
came to its possession in a damaged condition, by way of
defense. This proof the latter company can always make,
much more easily and readily than the converse can be
proved by the owner."

Incase II. it was said; "What presumption is to be
indulged against the Chicago and Northwestern Company so

1 Murphy v. Orr, 33 111. 4S9 (ISCJ). But eec Cacon i'. Smith, 2 La. Ann. 441 (1847).
» Scales V. Key, 11 Ad. & Ell. 819 (1S40).

1G8 prLESUirPTi\'E evidence. [rule 29.

as to charge that company with liability for the loss. It is
manifest that the recovery against it can not be sustained
without the aid of presumption of some kind. To main-
tain their action the plaintiffs must show, either b}' direct
evidence of the facts themselves, or by legitimate and
proper inference from other facts proved, first, that the
cloths wdiich are the subject of suit were in the custody of
the defendant as a common carrier, for transportation over
its road; and secondly, while in the custody of the defend-
ant they were lost. These two facts, either by direct proof
or by legal and proper inference or presumption, nmst
have been established, or the verdict can not be sustained.
The direct proof is wholly wanting. No one knows or can
say with any certainty whatever, that the cloths ever came
into the possession of the defendant at all. The most that
can be said, as a mere natural inference from the facts
proved, is, that they might have come into its possession,
and so have been lost or stolen while in its custody. As a
mere natural inference or presumption of fact to be drawn
or indulged by the jury, it is the slightest and weakest
possible, if, indeed, there exists any foundation for it.
And I do not see that there is any foundation, according to
Mr. Starkie's definition of natural presumptions of inere
fact. If there be a presumption, therefore, upon which
the defendant is to be held liable, it must be of the second
class spoken of by that learned author, namely, ' legal
presumptions made by a jury; or presumptions of laio and
fact.^^ Docs such legal presumption exist in this case?
The presumption <;laimed and relied upon is, that a particu-
lar state of things being once proved, that state is presumed
to have continued until the contrary is established by evi-
dence, either director presumptive. ' The position is that
the cloths being proved to have been in the boxes at the
time of their delivery to the Atlantic and Great Western
Kailway Company, the presumption of law is that they

1 Welch V. Sackett, 12 Wis. 257; Graves v. State, Id. 503.

RULE 29.] CONTIXUAXCE OF THINGS GENERALLY. 109

continued therein until the boxes came to the possession of
the defendant, unless the contrary be shown, the burden of
which rests upon the defendant. The existence of a pre-
sumption of this kind in certain cases is not denied, l)ut the
point is upon its applicability here. If the plaintiffs had
broujiht their suit ajjainst the Atlantic and Great Western
Compan}'-, could that company have escaped liability on the
ground of such presumption? And so, if the Pittsburg and
Fort Wayne Company had been sued, could it have avaided
responsibility on the same ground? Could both these com-
panies have exonerated themselves and imposed liability
for the loss exclusively upon the defendant, -svhen there was
no more evidence of the loss having occurred while the
boxes were in the custody of the defendant than when in
the custody of either of themselves? If those companies
could have done so then it must have been upon some tech-
nical application of the doctrine of presumption — upon a
presumption which is artificial rather than natural, and is
raised and sanctioned by the law from motives of necessity
or policy to give certainty to the remedy and prevent a
failure of justice in such cases. As the common carrier
next in order, the defendant was bound to receive and
transport the boxes when tendered. It had no means
of investigation or inquiry into their contents. It had
no right to open the boxes or examine what they con-
tained and if it had, could not have detected the loss by
such examination, and so have refused to receive and
carry. It must take the boxes as they were with no ex-
ternal signs or appearances of breaking or injury, and
nothing to give warning that the cloths had been previously
abstracted or removed and carry them forward to their
place of destination. Under these circumstances, the rule
or presumption of law which makes the defendant liable for
the value of the goods unless (what seems quite i!iii)ossiblc
to be done), it shows where the loss actually took place,
must be supported by most clear and satisfactory reasons of
policy or necessity, or otherwise it should be rejected. It

170 rRESUMPTIVE EVIDENCE. [rULE 29.

must bo shown that greater injustice or more certain injus-
tice will ensue from its rejection, than will or may follow
from its adoption. I have been, as I have said, in very
considerable doubt; but examination convinces me that
there are such reasons and that both the principle and author-
ity sustain the presumption. The very uncertainty which
exists as to when and where the cloths were taken out, or
in Avhose custody the boxes then were and the difficulty or
impossibility of ever ascertaining those facts, make the pre-
sumption absolutely necessary. What is difficult or impos-
sible for the defendant to find out with respect to the
breaking and larceny is still more difficult or impossible
for the plaintiffs. The defendant possesses means and
facilities which the plaintiffs do not. To say that the
plaintiffs shall not recover because they have not ascer-
tained and proved that the cloths were taken while the
boxes were in the custody of the defendant is, in eflect, to
say that they are without remedy in the law for their loss.
If required to make such proof to establish a cause of action
a;:^ainst this company, then the same proof would be
required in a suit against either of the others, and the
plaintiffs could not recover against any although it is cer-
tain that one of them is or should be responsible for the loss.
If the plaintiffs knew or could prove in whose custody the
boxes were when the cloths were taken, there would be no
hardship perhaps in requiring them to sue that company.
But the plaintiffs do not know, nor is it possible for them
to ascertain this, and unless aided by presumption, they are
without remedy, which is a positive and certain injustice. I
know of no more reasonable or proper presumption to
apply than that here invoked. In fact, I know of no other
fitted to the facts and circumstances of the case. It is true
the defendant may not be the company which ought in very
fact to be visited with the consequences of the loss, but it
is at the same time true that it may be such company.
The cloths may have been taken while the boxes were in its
custody. It is not certain that they were not, and there-

RULE 29.] CONTINUANCE OF THINGS GENERALLY 171

fore not certain that injustice lias been done the defendant.
On the other band, the wrong and injustice done the pUiiu-
tiffs, if they are dismissed without remedy, aro certain.
They are no matter of doubt or specuhition. If there were
no redress in such case, it could no longer be the boast of
our law that there is no wrong without its remedy, and the
strict liability of common carriers, whenever two or more
are associated in the transportation, or connected in the line
or route, would be at an end. It would be far more in har-
mony with the rules of the common law respecting such
liability, that any or all of the carriers so associated, or
whose lines or routes connect, and who have had possession
of the goods should be held liable, at the option of the
owner or consijxnee in such case, than that none of them
should be. And the reasons for adhering to those rules of
the common law probably exist at the present day quite as
much as ever; and by some they are thought to be even
more cogent. The difficulties, nay even impossibilities, by
which owners would be beset, if put to the task of ascer-
taining where their packages or boxes were broken open
and constantly plundered when in transit over our long
routes are well known and are illustrated by the facts of this
case."

" AVhen you prove," it was said in case rv., "that
shortly before the 20th of April, the plaintiff had in his
possession the particular drafts which he claims to have
deposited, and the particular bills of $1,000 and $100 which
he also claims to have deposited, some links in the chain
are furnished. Their strength depends upon their nearness
and relation to the transaction. If A., at seven o'clock, had
seen this envelope, and its contents with the plaintiff, and
B., at five minutes past seven, had seen him make the
deposit, I think the two could, by the inference of the jury,
be connected together, although there was an interval when
he was not within the sight of either. There is a legal pre-
sumption of continuance. A partnership once established
is presumed to continue. Life is presumed to exist.

172 PEESU3IPTIYE EYIDEXCE. [PXLE 30.

Possession is presumed to continue. The fact that a man
•vwas a f^ambler twenty years since justifies the presumption
that ho continues to be one. An adulterous intercourse is
presumed to continue. So of ownership and non-residence.
This analogy is fairly applicable to the present case and
justifies the admission of this evidence."

" The finding of the jury," said Lord Denman in case
VI., *' that the custom had existed since 1689, was the same
in effect as if they had found that it had existed till last
week, unless something appeared to show that it had been
legally abolished."

KULiE 30. — Domicil, residence or non-residence (A),
solvency or insolvency (B), infancy (C), partnersliip
(D), tlic holding of an office (E), authority to do an act
(F), and other relations or conditions of persons or
things (G), once shown to exist, are presumed to con-
tinue until the contrary is proved.

Illustrations.

I. An action is brouglit in Arlcansas, in 1841, by B. against P, It is
proved that P. resided, in 1824, in Indiana. Tlie presumption is that P.
still resides there .i

II. B., an inhabitant of tlie town of G., Massachusetts, conveyed his
farm on April 1st, and on the 27th of that month went with his family to
his brother's, in the town of T., where he remained until several days
after May 1st, returning then to G., and removing on the 27th of May to
Illinois. The presumption is that B. had not changed his domicil in G.,
on May 1st.'

III. To except an action on a contract from the bar of the Statute of
Limitations it is necessary to prove that the defendant was anon-resident
at the commencement of the suit. It is proved that he was a non-resi-
dent at the time the contract was made. The presumption is that he
continued a non-resident, and throws the burden on him to show that he

1 Prather v. Palmer, 4 Ark. 456 (1841); Inhabitants r. Inhabitants, 6 Allen, ."iOS
(1863) ; Eaton r. Woydt, 26 Wis 383 (1870) ; Uixford v. Miller, 49 VI. 319 (1877) ; Green-
fielfl V. Camden, 74 Me. .W (18S2) ; Daniels v. Hamilton, 52 Ala. 105 (1875).

2 Kiiburn v. Benuett, 3 Mete. 199 (1S41).

RULE 30.] CONTINUAXCE OF THINGS GENERALLY. 173

has been within the State a sufficient length of time to create a bar under
the statute.^

IV. Evidence by deposition is allowed to be taken where the witness
is more than thirty miles of the place of trial, and unable to attend court.
Before the trial the deposition of II. is taken for this cause. Subse-
quently when it is offered on the trial, it is allej^ed that II. is now in
town, and able to attend. The burden of proving this is on the party
alleging this.'

" It is necessary," said Lord Wcstbury in a leading En-
glish case, " in the administration of the law, that the idea of
domicil should exist and the fact of doraicil should bo
ascertained, in order to determine which of two municipal
laws may be invoked for the purpose of regulating the
rights of parties. We know very well that succession and
distribution depend upon the law of the domicil. Domicil,
therefore, is an idea of law. It is the relation which the
law creates between an individual and a particular locality
or country. To every adult person the law ascribes a
domicil, and that domicil remains his fixed attribute until a
new and different attribute usurps its place." ^

And Lord Cran worth added : " It is necessary to bear iu
mind that a domicil, though intended to be abandoned, will
continue until a new domicil is acquired, and that a new
domicil is not acquired until there is not only a fixed inten-
tion of establishing a permanent residence in some other
country, but until also this intention has been carried out
by actual residence there." *

B.

I. A. is proved to be in solvent circumstance on a certain day. A. is
presumed to continue solvent until the contrary is proved.*

1 state Bk. v. Scwell, 18 Ala. CIG (1851).

2 F.iown V. Burnliam, 23 We. 33 (IS-tS).

8 Bell r. Kennedy, L. U. 1 Sc. App. 3iO (1868).

■» And sec as to the presumption of conliuuanco of domicil, residence, and non-
residence, Daniels v. Ilaniillon, 52 Ala. 10.5 (1875) ; Walker r. Walker, 1 Mo. (App.)
401 (ISTC) ; Nixon v. Palmer, 10 Barb. 175 (1850) ; Church v. Rowell, 41) Me. ,"07 (ISCl; ;
LittloQeld V. Inhabitants, 50 Jd. 475 (1SG2) ; Goldie v. McDonald, 70 Hi. (j05 (IS75).

» Walrod r. Ball, 9 Barb. 271 (1S50).

174 pEESUMPTm: evidence. [rule 30.

II. An action is brought ou a promissory note and it is proved that
the maker was insolvent at its maturity. The presumption is that he was
insolvent when the action was brought. ^

III. It is proved that A. was bankrupt on August 31st. The presump-
tion five months later is that he continues so.''

C.

I. A. brings an action in his own name to cancel a deed executed
during his infancy. There is no allegation that he has attained his
majority before commencing the action. The presumption is that A. is
still an infant.*

II. In a settlement case, it is proved that a son is over age. It is
nevertheless presumed that he contiuues unemancipated as in the days
of his infancy, unless there is evidence to the contrary.*

"The counsel for plaintiff claims," it was said in
case I., "that the presumption of law is that a party
commencing his action in court is of full age, and
entitled to maintain the action in his own name until
the contrary is shown. In most actions this is true, but
the case at bar forms an exception. For the whole
cause of action in this case is based upon an act done
by the plaintiff during infancy, and tlie plaintiff being
in court is compelled to plead that the act was done
during his infancy. The age of the plaintiff at the time
of the execution of the deed, is not stated, nor is there
any thing in the complaint from which the court can
infer that the plaintiff has attained his majority. The
nature of the relief he seeks requiring the plaintiff
after he appears in court to, show himself a minor at
the time of doing a certain act, the presumption is that
such condition continues until the plaintiff himself nega-
tives it."

1 Mullen V. Pryor, 12 Mo. 307 (1848) ; Body v. Jewson, 33 Wis. 402 (1873).

2 I^onahuer. Coleman, 49 Conn. 464 (18S2).
8 Irvine v. Irvine, 5 Minn. 61 (1860).

* Ite Liilcshall, 7 Q. B. 158 (1845).

nULE 30.] CONTINUANCE OF THINGS GENERALLY. 175

D

I. A partnership brings an action on a note ; it is contended that the
plaintiffs are not partners. It is proved that three years previous they
were partners. The presumption is that they continue to be so.*

In case I. it was said : *' The evidence of a joint interest
in the plaintiffs was sufficient prima fade. It was shown
that they were partners in business two or three years pre-
vious. The witness stated that he had frequently done
business with them as partners and had settled with them
as such some two or three years since. There was no evi-
dence of any change or dissolution of partnership, and the
presumption was that they were still partners."

E.

I. A. is indicted for libelling B. in his capacity of public officer. It is
proved tliat previous to tlie publication of the libel, B. held a public
office. The presumption is that B. continued to hold it at the time of
the publication.*

I. The authority of a minor son to bind his father by contract is
shovrn to exist in 1845. A year later the son makes a contract which the
father contests. The presumption is that the son had authority to bind
him at this time.^

G.

I. A. sues B. for two weeks' board. It is proved that for a year and
up to the commencement of these two weeks, B., who was A.'s father,
had lived with him, and A. had not claimed any board. The presumption
is that the parties were living together during the two weeks on the same
terms.*

II. In Alabama, in 1855, the stockholders of a corporation are not
competent witnesses in an action by or against it. An action is brought
by the W. company, and one Y. is offered as a witness. There is evi-
dence that Y. was a stockholder in the W. company in 1850. The pre-
sumption is that Y. is a stockholder now, and he is incompetent."

1 Cooper f. Dedrick, 22 Barb. 51G (1S56) ; and see Anderson r. Clay, 1 Stark. 405
(ISlf.) ; Clark v. Alexander, 8 Scott X. R. 161 (1S4-1).

2 R. r. I5udd,5Esp.230.

« UrcKenzie r. Ptcvcns, 10 Ala. 692 flSol) ; Ryan v. Sams, 12 Q. B. 460 (1S48).

* Eanies v. Eamesi, 41 N'. H. 177 (1S60).

» Moulgomery I'iuuk KoaU Co. v. Webb, 27 Ala. CIS (1S5J).

17G PKESUMPTIVE EVIDENCE. [rULE 30.

III. In 1S70 a state of peace is proved to have existed in a certain
country in 18GG. The presumption is that the country is still at
peace .1

*III. (a). In 1S70 a state of war is proved to have existed in another
country in 18G0. The presumption is that the country is still at war .2

IV. In 1880 it is shown that a public treaty was in force between A.
and E. in 1870. The presumption is that it is still in force.^

V. A certain state of government is proved to have existed a number
of years ago in a certain country. The presumption is that that state
still exists.*

VI. A corporation ia shown to have existed at a former date. The pre-
sumption is that it still exists.*

VII. A. and B. are shown to be living in illicit relations at a previous
time. The illicit intercourse is presumed to continue.^

VIII. A party's reputation for truth and veracity is shown to have
been formerly good. It is presumed to continue good.'

IX. It is proved that F. was an unmarried woman at a certain date
The presumption is that she continues so until proved to have married.

X. The common law is known to have been in force in a certain place
at a certain date. The presumption is that it continues so until the con-
trary is shown.'

XI. A. is a tenant of a house. A month before her term expires she
has no license to sell liquor there. It can not be presumed that she will
obtain one before her term ends.^"

XII. B. is indicted for wounding F. so as to " disable " him. The
question is whether F. has been "disabled." The evidence is that F.
was so badly wounded as to be unable to walk at the time. The pre-
sumption is that F. continues in that condition. ^^

XIII. A suit involving certain property is brought before and heard

1 Covert V. Gray, 34 How. Pr. 450 (1S6G).

2 Id.

* People V. McLeod, 1 Hill, 407 (ISll).

* Gelston v. Hoyt, 1 Johns. Ch. 543 (184.^).

» People V. Manhattan Co., 9 Wend. 351 (1832).

« People V. Squires, 49 Mich. 487 (1882); Smith v. Smith, 4 Paige Ch. 432 (1834);
Cargile v. Wood, 63 Mo. 501 (1876).

7 Lum V. State, 11 Tex. (App.) 483 (1882).

8 Pago V. Findley, 5 Tex. 391 (1849).

9 Stokes V. Macken, 62 Barb. 147 (1861). And we presume, also, that the law
remains unchanged in the absence of proof to the contrary. Stol^esv. Macken, 62
Barb. 149 (1861) ; State v. Patterson, 2 Ired. (L.) 356 (1842) , Isabella v. Pecot, 2 La.
Ann. 387 (1847) ; Arayo v. Currell, 1 La. mo (1830) ; Wilson v Smith, 5 Yerg. 379 (1825).

1" Kane v. Johnston, 9 Bosw. 154 (1862).
u Baker v. Slate, 4 Ark. 56 (1812).

RULE 30.] CONTINUANCE OF THINGS GENERALLY. 177

by Judge II. in the year 18G8. It is proved that the judge was interested
In this property in 18C7. The presumption is that he still is interested
in it.i

XIV. An execution issued by the clerk of the court was delivered to
the sheriff. The presumption is that it remains there during his con-
tinuance in oUlcc, unless it is shown to have been returned. -

In case XII. it Avas said : <' Does this evidence support
the averment in the indictment that he was thereby dis-
abled, in the sense and meaning of the statute? We think
it does. For having proved the effect of the wound, and
there being no testimony introduced by the prisoner rebut-
ting this evidence, where the means were in his power,
showing that the injury was but temporary, from which
the witness had recovered, furnishes a forcible inference
against him; and the existence of the disabling having
once been proved, its continuance is presumed till proof
is given to the contrary. From the fact of a wound
having been once given, its nature raises a very strong
presumption of its continuance, and that the party did
not recover from its effects immediately, and as there
is no particular time when the presumption ceases, it still
continues."

In case XIII. it was said: *'Let us for the argument
assume that it was proved that in 1867 the judge owned
an interest in the defendant's mine. If he did own an
interest at that time, but sold out or abandoned his claim
before the commencement of this suit, it would not dis-
qualify him. When a certain state of facts is proved to
have existed, the legal presumption is that the same
state of things continues to exist until that presump-
tion is rebutted by proof of some counter presumption
arising from lapse of time or some other circumstance.

1 Table Mountain Mining Co. v. Waller's Defeat Mining Co., 4 Nov. 220 (ISCS).

- Anderson v. Dlyllic, T)! (Ja. 507 (ISTJ). lu aXorth Carolina case it was held that
a holograph script was seen among the valuable papers and effects of the decedent
eight months licfore his death, was no evidence that it was found there at or after
hiB death. Adams v. Clark, S Jones tL.) 60 (isCO)

12

178 PRESUMPTIVE EVIDENCE. [rULE 30.

If it Avas proved that the judfre was interested in de-
fendant's daim in 1867, the legal presumption would
arise that he continued interested therein in the year
1868."

"The facts relied on to show custody," it was said in
case XIV., were that the fieri facias was issued in 1861
and handed to the sheriff ; that the same sheriff and deputy
continued in ofBce during the wiiole of the year 1862, in
which year the judgment was made, and that it was not
shown to be in other hands until the following year. The
court was requested to charge the jury that in the absence
of proof to the contrary, the presumption of law was,
that ix. fieri facias, issued by the clerk and handed to the
sheriff, was in the sheriff's hands until paid, or until
shown to have been taken up by the plaintiff or some one
else for him. The request was denied. We think that,
under all the facts in the record, the court should have
given, substantially, the instructions asked for. The doc-
trine that a state of things once existing is presumed to
continue until a change or some adequate cause of change
appears, or until a presumption of change arises out of
the nature of the subject, is an element of universal law.
Without such a principle we could count upon the stability
of nothing, and to assure ourselves of a set of conditions
at one period of time would afford no ground for inferring
the same conditions at any other period. This presump-
tion of continuance is a well recognized principle of
evidence,^ and we think its application was rightfully
invoked by the counsel in the present case. If this
fi,eri facias passed regularly from the clerk's office to
the sheriff in 1861, and there is no evidence of its
return or any other disposition of it until 1863, what is
there to point to any other custody but that of the
sheriff during the year 1862?"

1 1 Grcenl., sec. 41,

RULE 31.] COXTIXUANCE OF TIIIXGS GENERALLY. 179

RULE 31. — Sanity or insanity once proved to exlAt is
presumod to continue. But aliter, as to temporary
insanity, produced by drunkenness, violent disease^
or otlierwise.

Illustrations.

I. The insanity of a person prior to tlie execution by him of a deed
is established. The burden is on the party seeking its validity to show
that it was executed during a lucid interval. ^

II. A., in 1800, is shown to have been sane in 1850. The presumption
is that he is still sane.'

III. In 1837, H. is inflicted with insanity, resulting from a violent
disease. There Is no presumption that H. was insane in 1838.'

" Every man being presumed to be sane till the contrary-
is proved," it was said in case III., *' the burden of proof
certainly rests, in the first instance, on the party alleging
the insanity. How far this burden is changed by the mere
fact of proof of insanity at a particular period, is the
precise point of the present inquiry. * * * ^ careful
analysis of the principles upon which presumptions are
allowed to have force and effect will show that the proof
of the insanity of an individual at a particular period does
not necessarily authorize the inference of his insanity at a

1 Ripley v. Babcock, 13 Wis. 425 (1860) ; Saxon v. Whitaker, 30 Ala. 237 (1857) ;
Sprague v. Duel, 1 Clarke (N. Y.), 90 (1839) ; Cartwright v. Cartwright, 1 Phill. 100;
Menkins v. Lightner, 18 111. 282 (1857) ; Jackson v. Van Dusen, 5 Jobns. 154; Ballew
r. Clark, 2 Ired. (L.) 24 (1S41); Allen v. Tublic Aclministrator, 1 Bradf. 378 (1S50);
Vance v. Coni.,2 Va. Cas. 133 (1818) ; State v. Spencer, 31 N. J. (L.) 1% (1S46) ; State
V. Vann, 82 N. C. 631 (1880) ; UadHeld's Case, 29 How. St. Tr. 109; McAlister v. State,
17 Ala. 434 (1850) ; McLean v. State, 16 Id. 672 (1849) ; Pierce v. State, 53 Ga. 3G5 (1S74) ;
State V. Johnson, 40 Conn. 136 (1873) ; State v. Brown, 1 Houst. Cr. Cas. 539 (1878) ;
People V. March, 6 Gal. 543 (1856) ; Atty.-Gen. v. Parnther, 3 Brown C. C. 441 ; Hall v.
Warren, 9 Vesey, 605; Ex parte Ilolyland, 11 Vescy, 10; AVhite v. Wilson, 13 Vesey,
'^1; Gr.ibill r. Barr, 5 Pa. St. 441 ; Hardin r. Hays, 9 Pa. St. 151 ; Re Gangwere, 14 Pa.
St. 417; Gombault r. Public Adnir., 4 Bradf. 226; Acbey v. Stephens, 8 Ind. 411; Lilly
f. Waggoner, 27 111. 3.15; Staples v. Wellington, 58 Me. 453; Purycar r. Rose, 6 Cold.
21 ; Porter v. Campbell, 53 Tenn. 81 ; Taylor r. Cress^yell, 45 Md. 422 ; Weston i: Hig-
gins, 40 Me. 103 (1855) ; Rush v. Megee, 36 Ind. 69 (1871) ; State v. Willner, 40 AVis.
304 (1876).

- Grouse v. Holman, 19 Ind. 30 (1862).

« Hix V. Whittemore, 4 Mete. 545 (1842); and see Titlow r. Titlow, 64 Pa. St.
216 (1867) ; Brooke v. Townshend, 7 Gill, 31 (1854) ; Stale v. Sewcll, 3 Jones (L.), 245
(1855) ; People r. Smith, 57 Cal. 130 (1880) ; Chandler r. Barrett, 21 La. Ann. 58. And
there is no presumption against the sanity of one formerly a lunatic but restored to
reason. Snow v. Bentou. 28 111. 306.

180 PRESUMPTIVE EVIDEXCE. [PvULE 32.

remote, subsequent period, or even several months later.
The force of presumption arises from our observation and
experience of the mutual connection between the facts
shown to exist and those sought to be established by
inference from those facts. Now, neither observation nor
experience shows us that persons who are insane from the
effect of some violent disease do not usually recover the
rio'ht use of their mental faculties. Such cases are not
unusual, and the return of a sound mind may be antici-
pated from the subsiding or removal of the disease which
has prostrated their minds. It is not, therefore, to be
stated as an unqualified maxim of the law, * once insane,
presumed to be always insane,' but reference must be had
to the particular circumstances connected with the insanity
of an individual, in deciding upon its effect upon the
burden of proof or how far it may authorize the jury to
infer that the same condition or state of mind attaches to
the individual at a later period. There must be kept in
view the distinction between the inferences to be drawn from
proof of an habitual or apparently confirmed insanity, and
that which may be only temporary. The existence of the
former, once established, would require proof from the
other party to show a restoration or recovery, and in
the absence of such evidence, insanity would be presumed
to continue. But if the proof only shows a case of insanity
directly connected with some violent disease with which
the individual is attacked, the party alleging the insanity
must bring his proof of continued insanity to that point
of time which bears directly upon the subject in contro-
versy, and not content himself merely with proof of insanity
at an earlier period."

RULE 32. — The character and habit of a person is pre-
sumed to continue as proved to be at a time past.

Illustrations.
I. It is hold under a statute, that a gambler is incompetent to receiA^e
letters of administration. It is proved that on November 9, 1848, M.

RULE 32.] CONTINUANCE OF THINGS GENERALLY. 181

resided in Santa Fc, and followed the profession of a gambler. In July,
1850, M. applies for letters of adniiuistrution on his mother's estate.
The presumption is that M. is still a gambler, and he is disqualiQed.^

IL It is attempted to impeach the character of P., a witness at a trial.
A. and B. knew 1'., four years before, when he resided at another place.
They testify that P.'s character was then bud. Tlie presumption is that
P.'s character remains the same.-'

In case II. it was said: " It might be too much to .say
that a character when once formed is presumed to remain
unchanged for life. Still the law, founded on a full knowl-
edge and just appreciation of the general course of human
affairs, indulges a strong presumption against any sudden
chanire in the moral as well as the mental and social condi-
tion of man. When the existence of a per.son, a personal
relation or a state of things is once established by proof, the
law presumes that the person, relation or state of things
continues to exist as before till the contrary is shown, or
till a different presumption is raised from the nature of the
subject in question. The opinion, also, of individuals once
entertained and expressed, and the state of mind once
proved to exist, are presumed to remain unchanged, till the
contrary appears. Thus a person, proved once to have
existed, is, within certain limits, presumed still to exist. A
partnership once established will be presumed to continue,
and where derangement or imbecility of mind has been
shown, its continuance is in like manner presumed until the
contrary is shown. The principle on which the presump-
tion in such cases rests has, it seems to me, a strong appli-
cation to the question now before the court. It is not look-
ino- to common experience in human conduct, generally
found to be true, that a thorough change from a bad to a
good character is wrought within four years. It may, and
it is to be hoped, often does occur; but such is not the com-
mon course of life. On the contrary there is a strong prob-

1 McMahon v. Harrison, 6 N. Y. «3 (1852).

» Sleeper v. Van Middlesworth, 4 Denio, 431 (1S47) ; Wood v. Mathews, 73 Mo. 4S2
(1881).

182 PRESUMPTIVE EVIDENCE. [llULE 33.

al)ility that one whose general character was bad four years
since is still of doubtful or disparaged fame. So much at
least may be asserted without evincing the feeling of a mis-
anthropist or an unseemly lack of charity."

The fact that A. was frequently seen to purchase gro-
ceries from B., who was the only grocer in the place, does
not raise the presumption that he purchased his entire sup-
ply from him, so as to authorize proof of the amount of
groceries necessary for his family, or actually consumed by
them during the time such purchases were made.^

RULE 33. — Specific acts done in other cases do not
raise tlie inference that a similar act was done in
another case, and evidence of them is inadmissible.

Illustrations.

I. The question is whether A. entered into a contract in a certain
form with B. Evidence that A. had entered into contracts in this form
with other persons Is inadmissible. "

II. A postmaster is sued for negligence by which a letter of C.'s was
lost. Evidence of specific acts of negligence in relation to other letters
is inadmissible .3

III. The question is whether a sale of guano was conditional and not
to be paid for if not of a certain quality. The fact that the seller had
made other sales on this condition is irrelevant.*

IV. S. is sued for selling diseased meat. Evidence that several years
previous S. had sold a diseased hog is offered. The evidence is inadmis-
sible.*

V. A. sues B. for articles furnished him on credit. B. contends that
the articles were furnished to the firm of W. & T. Evidence that A. had
previously refused to take W. & T.'s note for similar articles furnished to
one J. is inadmissible .«

VI. A. sues B. for work and labor. As evidence of payment, B. offers
to show that other laborers were employed by him at the same time, and

1 Scott V. Coxe, 20 Ala. 204 (1852).

2 Delano v. Goodwin, 41 N. H. 205 (1868).

3 Wentworth v. Smith, 44 N. H. 419 (1862) ; Robinson v. Railroad, 7 Gray, 503.

* HollinKham v. Head, 4 C. B. (N. s.) 388.
» True V. Sanborn, 27 N. II. 383 (1853).

• Swainecolt Machine Co. v. Walker, 22 N. H. 457 (1851).

RULE 33.] CONTINUANCE OF THINGS GENERALLY.

183

on the same kiml of work as A., and that these laborers were paid. This
evidence is irrelevant.'

VII. B. claims that A. promised to pay his (B.'s) debt against C.
The fact that A. has previonslj', under similar circumstances, promised
D. to pay his (D.'s) debt against C. raises no presumption that he prom-
ised to pay B.'s." »

«' The plaintiff claims," it was said in case IV., '* tliat the
jury should have been allowed to make the presumption of
fact of the unwholcsomcness of the beef from the fact that
the pork sold proved to be in an unwholesome condition.
If the presumption could properly be made, it must bo
upon the ground that it is found among those^ natural pre-
sumptions that depend upon their own natural force and
efficacy, in generating belief or conviction in the mind, as
derived from those convictions which are pointed out by
experience. ♦ * * Is there seen to be such an intimate
connection between the fact proved in this case, and the
fact claimed to be inferred from it, as to lead naturally to
the conclusion of its existence? Is the one fact to be
inferred from the other as a matter of fair argument and
reasoning? Is the inference so far natural and legitimate,
and according to the experience of mankind as to lead to
the inference of its clear probability? It would be the
height of absurdity to hold that the sale of an article at a
certain period which proved to be bad, of which the seller
might have had no knowledge whatever, would form a
proper and legal ground of inference that another and dif-
ferent article of property, sold several years after, by the
same person to a different purchaser, was of bad quality
also. In such case, there would manifestly be wanting that
connection shown by experience between cause and effect,
which lies at the foundation of the presumption to be
made."

In case VI. the testimony offered had been admitted on
the trial, but the Supreme Court held erroneously. " The

1 Filer v. Peebles, 8 N. II. 226 (1836).

2 Thelps V. ConaiU, 30 Vt. 277 (1S5S).

18 -J: PRESUIIPTIYE EVIDENCE. [rULE 34.

testimony," said tlie court, " seems to have been admitted
directly against the rule that provides that neither the decla-
rations nor any other acts of those who are mere strangers
are admissible in evidence against any one as affording a
presumption against them. It has been holden that the
time at which one tenant pays his rent is not evidence to
show at what time another tenant of the same landlord pays
his rent. * * * There is no such relative situation
shown as to these parties, as to raise any legal presumption
that payment to one tends to show a payment to the other."
In case VII. it was said : ** There was no legal connection
between the two cases. It did not follow, by any means,
that because the circumstances of the two cases were simi-
lar or identical even, the defendants, by assuming one debt
were bound to assume the other. Nor is there any legal
probability that he would pay one because he agreed to pay
the other. We are apt to think because the cases are alike
that the one helps prove the others. But they have no
more legal connection than the giving a note to one man
hp,s with proving that the same party also gave his note to
another. If the man bought on credit once, it is more
probable, perhaps, that he will again, but one such case
could not be shown to establish the others, for the reason
that there is no necessary connection between them. To
have one fact prove another there must be a necessary or
probable connection between the two."

RULE 34. — But the habit of an individujil being proved
he is prcsvimed to act in a particular case in accord-
ance with that habit.

Illustrations.

I. The question is whether a certain person had given a receipt in a
certain case. lie testifies that although he can not remember that he
gave a receipt in this particular case, yet he usually gave receipts in such
case. His evidence is admissible aud raises the presumption that he
gave the receipt in this case.^

1 Eureka Ins. Co. v. Robinson, 5G Ta. St. 250 (18CT), overruling Schoneman v.
Fcglci-, H/d.376(lS50).

RULE 34.] CONTINUA>XE OF THINGS GEXEKALLY. 185

II. The question is whetlier notice of additional in.surance bad bcea
given by tlie insured to tlie insurer. The former is unable to spealc po.si-
tiveiy but testified that it was always his custom to do so in such cases.
His evidence is admissible.^

III. The question is whether C, the attorney for the plaintiff in a
former suit, had directed T., an oflicer to whom C. gave a writ for ser-
vice, to take the receipt of M., and not remove the property. T. testifies
that such directions were given; C. tliat they were not. Evidence that
the uniform habit of C. as an attorney in delivering writs of attachment
to officers for service was not to give instructions to them to talie receipts,
but to abstain from giving any Instructions in regard thereto, is admis-
sible, and will raise the inference that C. had not done so in the particu-
lar case.^

IV. The question is whether a railroad has received certain cotton for
transportation. The company's agent testilles that it is the custom
always to weigh and mark goods taken for transportation. The cotton
in question was not marked. The presumption is that it was not received
by the carrier.^

v. The question is whether A. made a certain deposit on a certain
day, which A. alleges and the bank denies was made. The bank cashier
testifies that it is his unvarying habit to enter all the deposits in the daily
receipts. A.'s deposit does not appear in the list of receipts for that day.
The presumption is that A. made no deposit as he alleges.*

YI. A suit is brought for the loss by fire of a quantity of rice taken to
a mill to be ground. A. undertakes to prove by parol the amount of the
rice taken to the mill. The mill owner proves that it is his usual custom
to give written receipts for rice received by him. The presumption is
that the receipt was so delivered, and A. can not prove the quantity by
parol without accounting for the non-production of the receipt.^

VII. The question is whether B. accepted a draft by parol. The habit
of B. in accepting drafts to do so in writing is proved. The presump-
tion is that B. did not accept this draft by parol. «

VIII. The question is whether a certain person was personally sers'ed
with a notice of dishonor or protest. The clerk of the bank testifies that
it is his practice to do so. The presumption is that it was done in this
case.^

1 Eureka Ins. Co. v. Robinson, 56 Pa. St. 35C (1867).

2 Hine v. Ponicroy, 30 Vt. 211 (1S50).

» Vaughn v. Ilaleigh, etc., K. Co., G8 N. C. 11 (1S68), and see Kershaw r. Wright,
115 Mass. 361.

* Meighen f. Bank, 25 Penn. St. 2SS.
6 Ashe V. DcUosset, 8 Jones (L.) 240.
e Smith v. Clark, 12 Iowa, 32.
f Shove r. Wilej-, 18 Pick. 653.

186 PRESUMPTIVE EVIDENCE. [rULE 34.

IX. The question is whether a notice was mailed by a notary. From
the habit of tlie notary to mail notices in all cases the presumption
arises that it was.^

X. The question is whether D. had paid his taxes in 1832 and 1833.
The receipts of taxes issued to D. for nearly twenty-five years, and
covering nearly all the period except these two years are shown. The
presumption is that D. paid the taxes in these two years. '^

Case I., where a contrary opinion was expressed, was
overruled in case H. where it was said: "It is evident
that (in case I.) the matter was regarded of no importance,
as in truth it was in that case. No reasons were given and
no authority was cited. We think it not uncommon in
practice to corroborate the defective memory of a witness
by proof of what was his habit in similar circumstances.
Thus a subscribing witness to a will or bond, if unable to
recollect whether he saw the testator or obligor sign the
instrument or heard it acknowledged, is often permitted to
testify to his own habit, never to sign as a witness without
seeing the party sign whose signature he attests, or hearing
that signature acknowledged, and it seems to be persuasive
and legitimate supporting evidence."

In case III. the trial court had rejected the evidence, but
its rulings were reversed on appeal. *' There was a con-
flict," said the court, "between C. and T., C. testifying
that he did not, against T. testifying that he did. In such
cases it is commonly claimed that the testimony of him who
testifies affirmatively that an act was done, or an event hap-
pened (other things being equal), is less likely to be
erroneous, and is more reliable than the testimony of him
who testified that such act was not done or such an event
did not happen. Ordinarily it is said, and justly, that he
who testifies to the negative may have forgotten a fact that

1 Shove V. Wiley, 18 Pick. 561; Trabue v. Sayre, 1 Bush, 131; Miller v. Ilacklcy,
6 Johns. 38:5; Bell v. Ilagarstown Bk., 7 Gill. 227; Union Bk. v. Stone, CO Me. 5'JJ;
Coyle V. Gozzler, 2 Cranch C. C. G25; Cookendorfer v. Preston, 4 How. 317. Butit
has been held in Kcw York tliat proof of the ^general character of a person as a
usurer is not a proper foundation for presuming a contract by him to be usurious in
a particular case. Jackson v. Smith, 7 Cow. 717 (1827).

2 C'oxc V. Deringer, 82 Penn. St. 258 (1876).

RULE 35.] CONTINUANCE OF THINGS GENERALLY. 187

actually took place, while he "vvho testifies affirmatively can
not remember a fact that never did take place, and so upon
common principle, affecting and governing the credit and
weight to be given to testimony thus in conflict, it should
rather bo held that the one had forgotten than that the
other had testified falsely. It seems proper as grounded in
sound principle, and sanctioned by long usage, that such
affirmative acts and circumstances as are connected with or
kindred to the fact in controversy, and so related to it as to
affect the conduct or the memory of the witness as to the
main fact may be testified to by him as bearing upon the
likelihood of his not having forgotten nor testified mistak-
ingly as to the main fact. It is conceded, and many cases
are cited which show that evidence of the character offered
in this case only as corroborative has been received as per-
tinent and adequate of itself to prove a material fact, as in
the case of subscribing witnesses w^ho have forgotten about
having witnessed the execution of a paper in question, as
in the case of notices of presentment, protest, or the like,
when the witness has no recollection of the fact, but testi-
fies to his uniform habit and course of business in that
respect and to his belief grounded upon it, and thus proves
the material fact about which he has no active memory."
In case X. it was said: *' This precise, methodical, and
regular payment of the taxes on all the five tracts early in
the year was strong evidence of D.'s punctuality. It
proved his deep interest in the subject, which was not likely
to fail in the performance of his duty to protect himself.
It was a very natural conclusion that a man who always
paid his taxes promptly in biennial periods previous to the
time of sale would have iDaid them in time in 1832 and
1833."

RULE 35 . — But a future continuance is never pre-
sumed.

Illustrations.

I. A. brings an action against B. for enticing his minor son to enlist
lu the army. The question is as to the measure of damages, -whether A.

188 PRESUMPTIVE EVIDENCE. [rULE 35.

can recover for the loss of service until the end of his son's term (i.e.,
three years or the end of the war, which at the time is raging), or only
to the time of the trial. Held, the former, as the law can not presume
that the war will continue to exist for three years or for any period.^

II. lu a suit for divorce it is shown that certain letters were written
by the wife to a witness, tliree of them containing confessions of adul-
tery. These letters were destroyed, while two subsequently received
were handed to the custody of a third person. Held, that there was no
presumption that these last letters were written on the same subject or
contained similar confessions.*

"The enlistment," it was said in case I., " was to end
with the war, and the law will not presume in such a case
that the war will continue three years. The law presumes
that a fact continuous in its character still continues to
exist until a change is shown, and so a state of war proved
to exist three years ago is presumed in law to be still exist-
ing, unless the contrary be shown, but the law indulges no
presumption at the present time that it will continue three
years longer. On the contrary war is not the normal, but
an exceptional state of society, and is generally regarded as
a thing not to be desired either by individuals or nations.
Peace is desirable and not war, and the presumption is that
men and nations will do that which is for their interests
and act with reference to them. The law, however, will
not indulge in any presumption in regard to a future con-
dition of war or peace. God alone knows what the future
has in store for nations, and finite courts, whose visions
can not penetrate the future, should not speculate as to its
probabilities, much less attempt to solve them and make
them the basis of their judgment. The rule is reasonable
which presumes the continuance of an existing fact at the
time of the trial, for the other party can overthrow it by
proof if it be not so ; but when it presumes a future con-
tinuance the party has no ability to unfold the future and
give an answer by his proof."

In case II. it was said: " It was presumed that such let-

1 Covert V. Gray, 34 How. Pr. 450 (1866).

2 strong V. Strong, 1 Abb. Pr. (n. S.) 238 (1865).

RULE 3G.] CONTINUANCE OF THINGS GENERALLY. 189

ters, being part of a scries as they are called, must have
related to the same subject. I know of no principle upon
which every friendly letter between the same parties is to
be presumed in law to continue to advert to some one sub-
ject, or that confessions of guilt on that subject may be
supposed to be reiterated or protestations of innocence in-
serted in every one ; every thing is some time or other
brought to an end, and every subject is sometimes absent
from our thoughts or writings. Even a friend docs not
always continue to be confessor, and there is no experience
of mankind which warrants the conclusion adopted in this
case."

KULE 3G. — An admission made by a party to a suit,
or his attorney, that a certain fact exists and need
not bo proved, does not dispense Avith proof of the
existence of that fact subsequent to the date of the
admission.

Illustration.

I. A. sues C. as editor of a paper for a libel. On February 13th, B.'s
attorney files an admission that B. is editor. On May 19th, another libel
on A. appears in the same paper, and A. attempts to introduce this
libel in the action for the first, as showing the motive of B. Held, that
A. must first show that B. was editor of the paper at the time.^

In case I., on the second article being offered, Mr.
Brougham, who was counsel for B., objected to its intro-
duction on the ground that there was no evidence that B.
was the author of it. *' We have only admitted him,"
said he, *' to be editor up to the 13th of February, and this
was published afterward." Mr. Scarlett (afterward Chief
Baron Abinger) argued that having shown that B. was once
editor, it lay on him to show that he did not continue so.
But Lord Tenterden, C. J., ruled against him. " I do not
think," said he, "that I can hold that this admission can
be extended to a publication after its date. I consider that

1 McLeod V. Wakeley, 3 C. & r. 311 (1S28).

lOO PRESTOIPTIVE EVIDENCE. [rULE 37.

the admission goes down to its date, but no further," and
the evidence was rejected.

RULE 37. — And a presumption is not retrospective.

Illustrations.

I. A deed is signed in 1854 by Henrietta C, her maiden name. There
is evidence that in 18G0 she was known as Mrs. D. There is no pre-
sumption that she was married in 1854.1

II. Harriet G. executes a deed in 1854. The question is whether she
was married at the time. There is evidence that she was then over
twent\'-five years old. This raises no presumption that she was then
married.''

III. Depositions out of the State are allowed to be taken before " any
judge or justice of the peace." A commission is issued to Texas; depo-
sitions are taken before one B. on June 6, 1848; and it is officially
certified on June 29th that B. is a justice of the peace. There is no pre-
sumption from this that B. held that office on June 6th.'

IV. A. made a contract in 1860. In 1804 he was insane. There is no
presumption that he was insane in I860.*

V. M. committed a burglary in 1880 in the house of J. In 1881 M. was
tried and it appeared on the trial that J. was married. This raises no
presumption that J. was married at the time of the burglary.^

«' The presumption of coverture," it was said in case I.,
'* is prospective not retrospective. If we shall presume
for the purpose of avoiding the deed executed by her in her
maiden name, that she was married six years before we
have any evidence that she was married at all, we might
with the same propriety presume that she had been married
sixteen years. Such is not the law."

In case III. it was said: *' When the existence of a sub-
ject-matter or relation has been established, its continuance
may be presumed. But here we are called upon to pre-
sume from the fact that a person was qualified to act as a

1 Erskine v. Davis, 25 111. 251 (1861).
« Erskine v. Davis, 25 111. 251 (1801).
» Bareli v. Lytle, 4 La. Ann. .557 (1849).
* Taylor v. Cresewell, 45 Md. 422.
6 Murdock v. State, 68 Ala. 667 (1881).

RULE 38.] CONTINUANCE OF THINGS GENERALLY. 101

justice at a particular date, that he was qualified so to act
at a period anterior to that date. Such a presumption is not
supported either by reason or authority." In maritime law,
a different rule seems to prevail. Thus a ship soon after
leaving port becomes so leaky and disabled as to be unable
to proceed. There is no evidence that she encountered any
great storm or peril of the sea. The presumption is that
she was unscaworthy when she sailed." ^

In case V. it was said: <' "When the existence of a per-
sonal relation or a state of things continuous in its nature
is once established by proof, the law presumes that such
status continues to exist as before, until the contrary is
proved, or until a different presumption is raised from the
nature of the subject in question. But this presumption
can not be permitted to operate retrospectively, so as to
infer the prior existence of coverture or other like relation-
ship from proof of its present existence. It may be that
the parties contracted the relationship within a few days
before the trial."

RULE 38. — In case of conflicting presumptions, the
presumption of the continuance of thing^s is weaker
than the presumption of innocence.

Illii^tration.

I. A bankrupt, in 1837, makes a scheduled return of his property. It
is afterward discovered that in 1835 he owned certain property which
was not included in the schedule. There is no presumption tliat he
owned this property in 1837, for the presumption is that he did not com-
mit a fraud.'

1 Wright V. Orient Ins. Co., 6 Bosw. 270 (ISOO) ; 1 Arnould on Ins. 6S6, sec. 255.
= Powell V. Knox, 16 Ala. 634 (1319).

CHAPTER IX.

THE PEESUMPTION OF LIFE.

KtJLE 39. — liove of life is presumed^ (A. ), antl a person
proved to have been alive at a former time is pre-
sumed to be alive at the present time ^ until bis death
is proved or a presumption of death arises (B.).

Illustrations

I. H. is found dead. An examination reveals that his death was
caused by taking arsenic. H.'s life is insured, and the question arises
■whether his death was caused by suicide or accident. The presumption
is that it was caused by the latter .^

II. W. is killed by a railroad engine. The question is whether W.
could or could not have escaped the peril if he had desired to. The pre-
sumption is that he could not.*

III. A person is found dead. The presumption is that his death was
natural or accidental.^

IV. A. is found drowned. The presumption is that the drowning was
accidental."

In case I. it was laid down that where there is the occur-
rence of death merely, and no evidence upon the subject,
the presumption is that it was from natural causes, and not
an act of self-destruction. This presumption prevails in

1 Illinois Cent. U. Co. v. Cragin, 71 111. 184 (1873).

" King V. Fowler, 11 Pick. 302 (1831) ; Innes v. Campbell, 1 Rawle, 375 (1829) ; Ful-
weiler v. Baugher, 15 S. & R. 45 (1826) ; Pennefather v. Pennefather, Irish Rep. 6 Eq.
171 (1872) ; O'Gara v. Eisenlohr, 38 N. Y. 290 (1868) ; Battin v. Bigelow, 1 Pet. C. C. 453
(1871) ; Hall v. Com., Hardin (Ky.), 480 (1808) ; Lowe v. Foulke, 103 HI. 58 (1882).

8 Guardian Life Ins. Co.v. Hogan, 80 111. 35 (1875).

•• Way V. Illinois Central R. C, 40 la. 342 (1875) ; Morrison v. New York Cent. R.
Co.,63N. Y.643 (1875).

6 Germain v. Brooklyn Life Ins. Co., 26 Hun, 604 (1882). But this presumption
does not extend to an insane vian, found dead. Id.

0 Continental Ins. Co. v. Delpeuch, 82 Pa. St. 235 (1876).

(192)

RULE 31).] THE PRESUMPTION OF LIFE. 103

the absence of proof or in cases where the evidence on
/this point is equally balanced.

In case II. the instincts prompting the preservation of
life were said to be properly thrown into the scale of evi-
dence, like the presumptions of sanity and innocence.

In case III. it was said: "The party alleging suicide
must prove it. The mere fact of death in an unknown
manner creates no legal presumption of suicide. Upon
evenly balanced testimony the law assumes innocence rather
than crime. Preponderating evidence is necessary to
establish the latter."

B.

I. In 1831 the State of Georgia granted a tract of land to one T., avIio
had been a soUlior in the revolutionary war. In an action brought in
1857 there is no presumption thatT. is dead at this last date.^

II. A., an infant, and his father executed a deed binding A. to C.
for a term of years. Subsequently the infant brings an action on the
deed. There is no proof that the father was alive at this time. The pre-
sumption of law is that C. was alive.'*

III. A patent of land is produced granted to 0. in IC'Jo. It can not be
presumed that O. was not alive in 1773.'

IV. It was shown in 1843 that H., whose deposition in a case was
taken in 1822, was then fifty-nine years old, and in bad health. He lived
then in New York City. He is not shown to have ever left there, but his
address is not now (1843) known at the post-office, nor is it in the city
directory. Thea-e is no presumption that H. is now (1843) dead.*

Y. In an action on a recognizance given by M., the plea is that since its
execution M. has died. The burden of proving the death of M. is on the
defendant.^

YI. J. R. T., ayoung sailor, was last seen in the summer of 1840 going
to Portsmouth to embark on board ship. He was not subsequently seen.
His grandmother died in March 1841. The presumption is that he sur-
vived his grandmother.*'

1 Watso.n r. Tindal, 24 Ga. 494 (1858).

s Letts r. lirooks, Ilill & Denio, 361 (1842).

3 lliuumond v. Inloes,4Mil. 110 (1853).

* IlcIIall.l Wall. jr. 85 (18-13).

6 Wilson V. Ilo.lges, 2 East, :;13 (1802).

« lie Tiudall's Tinst, 30 Bcav. 151 (ISGl).

13

104 PEESUMPTIVE EVIDEXCE. [rULE 31).

VII. Ill 1732 a deposition of a witness made in 1G82 is offered. There
being no proof that tlie ^Yitness is dead, the presumption is he that is still
alive, and the deposition is inadmissible. i

VIII. A. is shoAvn in a ease tried in 1837 to have been alive in the j'car
1034. Tlie law will not infer that A. is dead without some evidence. ^

In case III. the court said; " The death of a person may
be presumed after a long lapse of time," without attempting
to say what that time was. But on the other hand, it laid
it down that '* when persons are known to have survived
ninety and one hundred years we can not say that others
have died at an earlier asre without some evidence on the
subject." In a subsequent case in the same State ^ the
court was equally contradictory. " Though there is no
leg.il presumption of the period when death occurred or up
to which life endured," said Alvey, J., "yet it may be pre-
sumed that Jacob Giles died before the bringing of this
suit, because it would be contradictory to the ordinary
course of nature that he should be living at that time." It
nowhere appears in the opinion at what date the suit was
instituted. John Giles, the father of Jacob, died in 1725;
he had eight children, of whom Jacob was the second. In
1732 Jacob made a deed of the land in controversy. Alvey,
J., delivered the judgment in which these views were
expressed in the year 18G8.*

Incase rv. Mr. Justice Baldwin said: " The life of a
person once shown to exist is intended to continue till the
contrary be proved, or is to be presumed from the nature
of the case. Direct proof is not here offered. Are the
facts which are shown sufficient to supply its place? The
witness, if alive, is eighty years old; an age that we may
admit is an advanced one ; but is yet one to Avhich life is
occasionally — nay, not unfrequently, prolonged. The

1 Benson v. Olive, 2 Strange, 920 (1732).

2 Atkins V. Warrington, Best Ev. 412- Cliitty Pldg. 616.

3 Spriggi'. Moalc, 23 Md. 50S (ISOS)

* And see Jarboe v. McAfee 7 B. Monr. 2S2 (18i7).

r.ULB 39.] THE riiESUMFXION- OF LIFE. I'Jo

jeourt can not therefore presume, as of course, that Hall has
not roac-hed it. Lord Ilale has indeed said that it shall be
presumed life ■will not exceed ninety-nine years, ^ and it
may be inferred that a man, if of any age already, "U'ill not
live eighty years besides;^ but Chief Baroa Keynolds
refused to presume a witness dead who had been examined
sixty years before, there having been no proper searches
or inquiry made after him. Keither does the circumstance
t!iat the witness was in bad health in 1722 infer, as neces-
sary consequence, that he is now dead. The difficulty is
here — that the expression ' bad health ' is indeterminate.
There are manifold sorts of bad health, and many degrees
in most of them. Show me that Hall was the subject of
some quick, consuming disease, or of any specific malady
at all, and j^ou will change the case. Suppose that his ' bad
health ' was temporary, or that the expression means only
that his health was not robust. A man in bad health at one
time may recover afterward ; that depends entirely upon
the nature of his disorder and mode of treatment and vigor
of his constitution. And the valetudinarian often prolongs
an existence beyond him, who in the carelessness of health,
may be suddenly cut down. In the case cited from 13
Vesey ^ the health was very bad (the chancellor speaks of it
as ' desperate' ), and the man was to have been heard of six
months after he went away, several yoavs before. * * *
Is the case essentially changed by the inquiries made at the
post-office? This difficult}'' occurs — that there is nothing
t;) show that H. was a person likely to be known there;
that he was in the habit of receiving letters, or that he was
a person of any note or consequence. It is no presump-
tion of law that the runners at the post-office know, so as
to answer at first inquiry, the name and residence of every
person in a populous city. Remarks of a similar sort
apply to the inference which would be drawn from the

1 Wealc r. Lonicr, Pollex. 55.

' Xappcrr. Saunders, Hiitton, US; Kecblc's Case, Littleton, 37).

^ Webster %: Bhchmorc.

196 PKESUMPTIVE EVIDENCE. [rULE 30.

absence of the name from the directory. Indeed in the
insignificance of advanced old age, a man has gencrall}'
ceased to make impression on the busy world or to be
enrolled on the register of its active concerns. It seems to
me difficult to suppose that direct evidence can not be given
of M death, Avhich if it has occurred, has occurred close to
us, and since 1822. Or did II. ever leave the place of his
former residence? Let this fact be shown, and that his
friends have not heard of him for seven years. Had he no
friends — let that fact be shown. The difficulty is that the
plaintiff does not show that he has made proper search or
inquiry for H. Had he done this, and been unable to hear
any thing of the person, I should be of opinion to receive
the testimony. But there is a meagerness about all this
part of the case which is unsatisfactory, to use no harsher ad-
jective. It shuts up the access to presumption, which would
have otherwise been easy. In short, I see nothing in any
of the circumstances shown, nor in all of them together,
which, in the absence of proper inquiry, brings that weight
and conclusiveness which ought to exist before you set
aside a wise and deep laid rule of law."

In case V. Lord Ellenborough said he relied on the earlier
case of Throgmorton v. Walton,'^ where it was decided that
where the issue is upon the life or death of a person once
shown to be living, the proof of the fact lies on the party
who asserts the death ; for that the presumption is that the
party continues alive until the contrary is shown.

In a IS^ew York case it was said : " There is nothing in the
point raised on the part of the defendant that the trustees
are to be presumed dead from the lapse of time since they
were heard from. The rule is that the proof of the death
of a person known to be once living is incumbent upon the
party who asserts his death ; for it is presumed that he still
lives until the contrary be proved. The presumption of
death from any lapse of time which the evidence in this
case could justify, would only apply where the individual

2 liolle, 4G1.

RULE 41.] THE rRESUMrTION" OF LIFE. l'J7

;illo*'-cd to be dead has left the ])hicc of his domicil, and
h:id not been heard of for seven years or more. No such
proof was given or offered in the present case." ^

IIUL.E 40. — Death may be proved by reputation, by
hearsay, or by evidence of facts inconsistent with the
theory of the existence of life.^

Illustrations.

I. The question in 18(59 is whether II., who was alive in 1845, is dead.
Acquaintances testify that his death, in 1845, was announced in the news-
papers, and that his friends spoke of him as being dead. This overturns
the presumption that he is alive. ^

II. K. was married in 1719, and had six children. It is proved that
inquiry had been made where information of them would naturally be
oI)tained, and no account of Ave of them could be had. This is held
s'jflicient, seventy years having elapsed, ,to justify the inference that
they were dead without lawful issue.^

III. Forty-eight years before, a conveyance was made to one C. by
order of court. No claim has since been made by parties, who if living,
would be entitled. The presumption is that they are dead.*

RUL.E 41. — One Avho is proved to have been unmarried
Avlien last kuo^ai to be alive will be presumed to have
died childless ; but it is otherwise where he or she
was married when last known to be alive.*

Illustrations.

I. W. emigrated from Australia to Ireland in ISol, and continues to
communicate with his relatives in Ii-eland until 1850. Since then nothing

1 Duke of Cumberland v. Graves, 9 T.arb. G03 (1850).

2 Anderson v. Tarker, C Cal. 107 (1S5C) ; Jackson v. Etz, 5 Cow. 319 (1S26) ; Scheel
f. Eidman, 77 111. 301 (1872); Bailey v. Bailey, 36 Mich. 1S5 (1S77) ; John Hancock
Ins. Co. V. Moore, 3-t Mich. 41 (1S7G) ; Crouch v. Eveleth, 15 Mass. 305 (181S) ; liulotf
V. People, 18X. Y.1-29 (IST.S).

3 Kiughousc r. Keevcr. 49 111. 470 (1SG9).
■* King V. Fowler, 11 Pick. 302 (1831).

6 Allen r. Lyons, 2 Wash. C. C. 475 (ISU) ; Thomas v. Visitors of Frederick Co.
School, 7 Gill &. J. 385 (1S:>.')).

6 McComb V. Wright, 5 Johns. Ch. 2G3 (1821) ; Hammond r. Inloes, 4 Md. 140
(1S53) ; Stinchllcld r. Emerson, 52 Me. 405 (18C4) ; Petcrkin v. Inloes, 4 Md. 175 (1853) ;
Siirigg V. Moale, 23 Id. 50(» (18CS) ; Emerson r. White, 29 N. II, 482 (1854) ; OUlnull r.
Deakin, 3 C. & P. 4frl (1823) ; Banning f. Griffin, 15 East, 293; Richards r. Uichards,
/(/. 204 (1812) ; Oldham c. ■\Vollcy, 8 B. & C. 22 (1S28) ; Dunn v. Snowdeu, 33 L. J. (Ch.)
lOi (1SG2) ; nays v. Tribble, 3 B. Moar. 109 (1842).

198 PRESur.iPTiYE EVIDENCE. [nui.E 42.

has been heard of him, though inquiries had been made. When he left
Ireland he was unmarried. In 18G6 the presumption is that W. Avas
dead without issue.'

II. It is proved that D. E., with a wife and one child, left his home in
182-t. He has not, in 1854, been heard of. The presumption is that D.
K. is dead, 2 but there is no presumption that he has no issue living. ^

III. A married woman went from Ireland to America in 1847 with her
husband and seven children. She dies in America in 1SG6. There is no
presumption in 1876 that all the seven children have died without issue.*

In case II. it was said : "As nothing had been heard from
D. R. for many years, the law would raise a presumption
of his death ; and had he been a bachelor when last known
or heard from, the presumption would be that he died
unmarried and without issue; but as he had a wife and
child in full life when he left the country, the presumption
of his death would not ignore their existence."

RULE 42. — But it is to be presumed that a person
proved to be dead left an beir.

Illustration.

I. P. mortgaged certain real estate to T., and died intestate, without
disposing of the equity of redemption. T. flies a bill against the admin-
istrator to foreclose the mortgage. The heirs of P. should have b^eu
added, as the presumption is that P. left heirs. ^

In case I. it was said : " It is insisted that there is noth-
ing in this case to show that the mortgager had heirs to
whom the equity of redemption descended. Under our luw
the presumption clearly is that he left heirs capable of suc-
ceeding to the estate; and there is nothing in the record to
repel the presumption. The constitution declares that ' no
conviction shall work corruption of blood or forfeiture of
estate.' The statute provides that the estate of a person

1 Re Webb, Irish Rep. 5 Eq. 235 (ISTO).

s See Rule 43

3 Campbell v. Reed, 24 Penn. St. 498 (1855).

* Mullaly V. Walsh, Irish Rep. G C. L. 315(1872).

' Uarvey v. Thornton, 14 111. 217 (ls52.)

^ULE 42.] THE rnESUiirxioN of life. 109

dying intestate sh.-ill go to the next of kin, however remote
in degree; and aliens and non-residents are as capable of
takin"- the estate as citizens or residents. It is difficult,
therefore, to imagine a case, unless it be that of a bastard,
d3'in<T intestate and without issue, where an intestate does
not leave kindred on whom the law casts his estate. It
sometimes happens that the State acquires an estate under
the operation of the law of escheat, but that may be not
because there are no persons in esse to take the estate, but
because they do not appear to claim it. The presumption
is so violent that the estate of an intestate is transmitted to
others by descent, that it can only be repelled by proof
that the fact is otherwise. It may perhaps be, if the bill
had contained an allegation that the mortgager died with-
out heirs, that the decree might be sustained. But in the
absence of such an averment, it is clearly the duty of the
court to intend that there are persons in existence who
inherited the equity of redemption ; and they must be
brou"-ht into the case before a decree of foreclosure can
properly be entered. If the heirs are not known they can,
under the statute, be proceeded against as unknown per-
sons."

CHAPTER X.

THE PRESUMPTION OF DEATH.

RULE 43. — An absentee shown not to liave been heard
of for seven years by persons, who if he had been
alive would naturally have heard of him, is presumed
to have been alive until the expiry of such seven
years, and to have died at the end of that term.^

Illustrations.

I. In the middle of November, 1840, Captain M., in command of a
ship of war with ten seamen, sailed on a launch from San Francisco to
Fort Sutter, on the Sacramento River. No intelligence was ever after

1 Stevens v. McNamara, 36 Me. 176 (1853) ; Doe v. Flanagan, 1 Ga. 538 (1816) ;
Spears v. Burton, 31 Miss. 554 (1856) ; Craig v. Craig, 1 Bailey (Eq.) (S. C.) 102 (1830) ;
Clarke v. Cummings, 5 Barb. 353 (1819) ; Tilly v. Tilly, 2 Bland Ch. 444 ; (1810) ; Foulks
V. Ehea, 7 Bush, 568 (1870) ; Ashbury v. Sanders, 8 Cal. 62 (1857) ; Godfrey v. Schmidt,

1 Cheves (S. C), 57 (1840) ; Mottett v. Varden, 5 Cranch C. C. 658 (1840) ; Anonymous,

2 Ilayw. (S. C.) 134 (1801) ; Bowden v. Evans, 2 Hayw. (S. C.) 222 (1802) ; Crawford v.
Elliott, 1 Iloust. (Del.) 465 (1855) ; Hancock v. American Life Ins. Co., 62 Mo. 26
(1876) ; Smith v. Knowlton, 11 N. II. 1% (1840) ; Kingr. Paddock, 18 Johns. 141 (1820) ;
Bradley v. Bradley, 4 Whart. 173 (1838) ; Loriug v. Steinman, 1 Mete. 210 (1840) ;
Spears v. Burton, 31 Miss. 547 (1856) ; Forsaith v. Clark, 21 K II. 424 (1S50) ; Rosenthal
V. Mayhugh, 33 Ohio St. 155 (1877) ; Rice v. Lumley, 10 Id. 596 (1857) ; Youngs v. lleil-
ner, .36 Id. 232 (1880) ; Mayhugh v. Rosenthal, 1 Ciun. Sup. Ct. 492 (1871) ; Holmes v.
Johnson, 43 Pa. St. 159 (1SG2) ; Innis v. Campbell, 1 Uawle, 375 (1829) ; Puckctt v.
state, 1 Sneed, 356 (1853) ; Primm v. Stewart, 7 Texas, 183 (1851) ; Re Hall, 1 Wall. jr.
65 (1813) ; Woods V. Woods, 2 Bay, 476 (1802) ; McXair v. Ragland, 1 Dev. (Eij.) 633
(1830) ; Davis v. Briggs, 7 Otto, 628 (1878) ; Rust v. Baker, 8 Sir.i. 443 (1837) ; Onomaney
V. Stlllwell, 23 Bcav. 328 (1856) ; Ewing v. Savery, 3 Bibb, 235 (1813) ; Adams v. Jones, 39
Ga. .503 (1869); Proctor u. McCall, 2 Bailey (S.-C.),134; 23 Am. Dec. 134 (1831); Lajoye
V. Primm, 3 Mo. 529 (1834) ; Iloyt v. Newbold, 45 K. J. (L.) 219 (1383). In Naisor v.
Brockway, Rich. Eq. Cas. 449 (1830), there is an extraordinary ruling by Chancellor
Harper, of South Carolina, to the effect that where an absentee is unheard of for
ecven years, the presumption is that he died at Ihe commencement ot that period.
The question was whether one Philip Naison Brockway could be presumed to have
died before reaching the age of twenty-one years. He was born in 1800, and left
home in 1814. Late in 1814 he was last heard of. The chancellor held that he must
bepresumed to have died a minor, saying: "When the period of seven years has
elapsed the law presumes that it was occasioned by death and not by any minor
casualty. Not death at the end of the period; but that the ignorance of his exist-
ence during the whole period was the consequence of his death. This seems nat-
urally to have relation to the earliest period when his existence became uncertain."

( 200 )

RULE 43.] THE ITJCSUMPTIOX OF DEATH.

201

received of the launch or any of its crew. On December 1, 184<;, a grant
of land was made to Captain M. The presumption is that Captain M.
was alive on December 1, 1871.^

II. E. died on September 9, 1851, leaving a logacj- to his .son W. In
May, 1846, W. wrote to his brother that he was to sail from Baltimore to
Africa in a few days in charge of a brig. Nothing was subsequently heard
of hlra. The presumption is that W. was alive on September 9, 1851.*

III. In March, 1801, M. disappeared from his boarding-house in New
York with the declared intention of going South, and was not afterward
seen or heard of. In 1871 his administrator brought an action on a
policy of insurance on his life. The company defended on the ground of
a failure to pay a premium due in June, 18G1. M. is presumed to have
been alive at that time, aud the administrator can not recover.^

IV. In 18GG, A. claiming as the wife of N., brought an action for
dower in land which the defendant claimed by virtue of a deed made ia
1856. It is proved that N. has not been heard of since March 21, 1852.
The presumption is that he was dead on March 22, 1859.*

V. C. died December 4, 1352, leaving by her will a legacy to her
nephew, E. In 1837, E. resided in Connecticut, but removed to New
York, where he was heard from until 1849, when he ceased to correspond
with his friends in Connecticut, aud was not subsequently heard of. If

The chancellor afterward found that he had drawn the line too closely, for he add3
ill a note to the rciiort of the case : " Memorandum. After this decree and after the
distribution, Philip Xaisor Brockway, as I am informed, made his appearance ia
Charleston in good health." But see Chapman v. Cooper, 5 Rich. (L.) 452 (1S5-2). The
rule adopted in England is diflfercnt. It seems to be established by the decision of
the highest courts in that country ,that where a person goes abroad and is not heard
of for seven years, the law presumes that he is dead, but there is no presumption
of law that he died at any precise time within these years. In other words, that
on the one hand the time at which a person died within the seven years is not
amatter of presumption but of proof, and on the other, there is no presumption of
the continuance of life after the disappearance of the party ; but the onus of prov-
ing the death or existence of the parly at any particular time within that period
lies on the person who claims a right resting on the establishment of either of these
facts. Doer. Nepean, 5 B. &Ad. 36; Knight f. Nepean, 2 M. & W. 89.5; RcPhene'3
Trusts, L. R. 5 Ch. App. 130; Re How, 1 Sw & T. 53 (1S58) ; Thomas v. Thomas, 2 Dr.
&.Sm. 293 (1SC4) ; Re Bcnham's Trusts, 37 L. J. (Ch.) 2G5 (1S6S) ; Lambcr. Orton, 29 Id.
2S6 (1860) ; lie Peck, 20 L. J. (P. & M.) 95 (ISOO). But the English cases are not in ac-
cord on this point, as will be seen by consulting R. v. Wellshire.G Q. B. Div. 3CG; Re
Corbishley's Trusts, 14 Ch. Div. 84G;Gill v. Manley, IG Ir. L. T. 57; Wilson r. Uodges,
2 East, 313; Doe v. Jesson, C Id. SO; Rowe v. llosland, 1 W. Bl. 4*4. A few crises in
the American courts follow the English rule. State v. Moore, 11 Ired. (L.) IGO (1650) ;
Spencer v. Roper, 13 Id. 333 (1S.)2). Proof of a rumor that the party was alive
within the seven years that turned out to be untrue rather strengtliens instead of
■weakens the presumption of death. Moore v. Parker, 12 Ired. (L.) 123 (1S51).
1 Montgomery v. Bevans. 1 Sawy. GGO (1871).

- Eagle's Case, 3 Abb. Pr. 218 (1S5G) ; Bradley r. Bradley, 4 Whart. 173 (1S3S) ;
Whiteside's Appeal, 23 Pa. St. 114 (1S54).

3 Hancock r. American Life Insurance Co., 62 Mo. 26 (1S7G).
* Whiting r. NichoU, 43 111. 235 (1SG7).

202 PRESUMPTIVE EVIDEXCE. [eULE 43.

E. died before C. the legacy lapsed. If he siirvivcd in 18G2 (when the
suit was brought), it belonged to him. If he died after C. it belonged to
Lis next of kin. The presumption is that E. did not die till 185G, and the
legacj' goes to his next of kin.i

TI. J. sailed from New York to Europe in 1791, and nothing was sub-
sequently heard of him. The presumption is that A. continued alive till
the expiration of seven years from the day he sailed from New York.^

VII. A woman was sued on a promissory note dated in 1808. Slie
pleaded coverture at the time. It was proved that she was married in
England in 1779 to a person who went to Jamaica twelve years before the
trial. The presumption is that the husband was dead after seven years'
absence .2

Tin. S. disappeared at an unknown date in the year 1809. There is
no presumptiou that S. was dead on April 29, ISlC*

In fixing this arbitrary period of seven years — for it
might just as reasonably have been five or ten — the judges
followed the Legislature, which in the times of James the
First and of Charles the Second, in order to render it possi-
ble for the wife of an absent party to marry again without
fear of committing a crime, and to lessen the inconvenience
of ascertaining and proving the death of cestuis que vie in
leases, provided that seven years' absence without being
heard of should be sufficient proof of death in both cases.

Ill one case an English vice-chancellor e.xpressed the
opinion that the presumptions relating to death were becom-
ing more and more untenable. "Owing," said he, "to
the facility which traveling by steam afforded, a person
may now be transported in a very short space of time from
this country to the backwoods of America, or some other
remote region, where he may never be heard of again."

A period longer than seven years would, according to
this reasoning, best suit the necessities of modern habits
and invention. But nine men out of ten would be likely
to come from the same premise to the very opposite con-

1 Clarke v. CanfieUl, 15 N. J. (Eq.) 119 (18G2).

- Burr V. Sim, -1 Whart. 150; ?,?, Am. Dec. 50 (1838)

8 Hopewell V. Do I'inney, 2 Camp. 113 (1809).

* Derin r. Bittner, 77 Mo. 101 (18S2).

6 Shadwell, V. C, m Watson v. Eugland, U Sim. 28.

RULE 43.] THE rRESUMrriON OF DEATH.

203

elusion. To go abroiid n hundred and fifty years ago, was
attended in the first place with greater danger, and in tho
second place, his means of communication were infrequent
and uncertain. Every one who at that time went to regions
at all remote was as much cut off from the facilities of a
modern post-office as was Livingstone during the time that
Stanley was in search of him, or as our Arctic explorers of
the present day. But to-day it is only the explorer or the
hermit who is able to put himself beyond the means of
communication with any part of the world.

"The law as declared in England," it was siad by ?»Ir.
Justice Field, in case I., *' is different from the law which
obtains in this country, so far as it relates to the presump-
tion of the continuance of life. Here, as in England, the
law presumes that a person who has not been beard of for
seven years is dead, but here the law, differing in this
respect from the law of England, presumes that a party
once shown to be alive continues alive until his death is
proved, or the rule of law applies by which death is pre-
sumed to have occurred, that is, at the end of seven years.
And the presumption of life is received, in the absence of any
countervailing testimony, as conclusive of the fact, establish-
ing it for the purpose of determining the rights of parties
as fully as the most positive proof. The only exception to
the operation of this presumption is when it conflicts with
the presumption of innocence, in which case the latter pre-
vails. This rule is much more convenient in its application,
and works greater justice than the doctrine which obtains in
England, according to the decision in Pliene Trusts, th^it
the existence of life at any particular time within the seven
years, when the fact becomes material, must be affirmatively
proved. In numerous cases such proof can never be made,
and property must often remain undistributed, or be dis-
tributed among the contestants, not according to any set-
tled principle, but according as one or the other happens to
be the moving party in court. Take this case by way of
illustration : A man goes to sea on the first of January,

204 PRESUMrXIYE EVIDENCE. [rULE 43.

18G0, and is never heard of again: his father makes his
will and dies on the first of July of the same year, leaving
him a portion of his property, and the residue to a distant
relative. If persons claiming under the missing man apply
for the legacy to him, they must fail, for they can not
prove that he survived the testator. On the other hand, if
the residuary legatee applies for the property on the ground
that the legacy to the missing man has lapsed, he must fail,
for he can not prove that the missing man died before the
testator, and the proof of his death in such case would be
essential to the establishment of the applicant's right. Nor
is this rule as to the presumption of the continuance of life
up to the end of the seven years justly subject to the criti-
cism of counsel, that it renders absurd the whole basis on
which the presumption of death rests. There must be some
period when the presumption of the continuance of life
ceases and the presumption of death supervenes ; and as in
all cases where the existence of a presumption arising from
the lapse of time is limited by a fixed period, it is difficult
to assign any valid reason why one presumption should
cease at the particular time designated, rather than at some
other period and a different presumption arise, except that
it is important that sometime, when the change takes place,
should be permanently established. It would be difficult to
assign any other reason than this for the presumption which
obtains in some States that a debt is paid upon which no
action has been brought, after the lapse of six years ; and
that it is unpaid up to the last hour of the sixth year. The
presumption of payment arising from the lapse of time
without action, it might be said with equal propriety, as in
the present case with respect to the presumption of life to
the end of the seventh year, that if the presumption of non-
payment extends up to the end of the sixth year, it renders
absurd the whole basis upon which the presumption of pay-
ment rests. So it would be difficult to give any sufficient
reason for admitting in evidence a deed thirty years old
without other proof of its execution than what is apparent

KULK 4.0.] THE rRESUiimON OF DEATH. 205

oil its face, and at the same time refusing admission to a
deed except upon full proof of its execution, whicli has
existed thirty years less one day — except that it is impor-
tant that the period should be fixed at which the presump-
tion arises which supersedes the necessity of direct i)roof."
In case II. it was said: "■ A\'hat is a court or jury to do
when there arc no accompanying circumstances, when there
is no ground, in fact, for inferring death at any particular
time. The question is not whether those presumptions are
rigid and strict, but whether there arc any such presump-
tions, and if so what is their effect "when there is an entire
dearth of evidence tending to guide the conclusion as to life
or death. Confessedly before the analogy drawn from the
statute of bigamy and life tenancies prevailed, it was a mlc
of evidence to presume life until the contrary was shown.
That rule still continues except so far as it has been modified
by the presumption drawn from the statutes of death after
seven 3'ears' absence without intelligence. The practical
effect of these two rules, if both arc to be taken as subsist-
inff, is that whenever the law is invoked as to the riijhts
depending upon the life or death of the absent party, he is
to be deemed as living until the seven years have expired,
and after that is to be deemed as dead. Not that the law
finds as a matter of fact that he died on the last day of the
seven years, but that rights depending on his life or death
ore to be administered as if he had died on that daij. It is
impossible to say when he died, or even to assert as a mat-
ter of fact that he is dead, but in the absence of all evi-
dence the law will account him as dead at a certain time
and not before. This is an artificial rule, and of course
can not be expected to square with the actual fact. It is the
logical result of the presumptions, founded upon reasons of
convenience, and the necessity of fixing upon some limit
within which the relations of the living to the absent are to
be determined, more than upon any strong probabilities.
This is the meaning of our statute in respect to life estates
which declared that if the life tenant shall absent himself

206 • PEESU3IPTIVE EVIDENCE. [rULE 43.

for seven years, and his death shall come in question, such
person shall be accounted naturally dead in any action con-
cerning the lands in which he had the estate for life, unless
sufEcicnt proof be made that he is still living. He shall be
accounted dead. The law so treats him and accounts him,
just as the common law treated and accounted him living
until his death was proved. In neither case can it be said
that his life or death has been actually proved, but in both
cases it may be said that he shall be accounted living until
by reason of his absence the law accounts him dead ; and
for the purposes of justice, the rights and relations of par-
ties affected by his life or decease shall in the absence of
information be determined by this technical presumption.
This certainly seems to me the most consistent and symmet-
rical rule; and when it is regarded as a dry legal doctrine
adapted for purposes of convenience, and from the necessity
of having some limited period for the determination of the
rights of absent persons, and not as a determination upon
the death or the real time of the death, there would appear
to be no grave objection against it. * * * The result
is that in the case of absent persons, it is within the province
of the court or jury to infer from circumstances, if any
appear in proof, the probable time of death; but if no
sufficient facts are shown from which to draw a reasonable
inference that death occurred before the lapse of seven
years, the person will be accounted in all legal proceedings
as having lived during that period."

In case IV. it was said : " It has come to be regarded as
a settled principle that the absence of a party for seven
years, without any intelligence being received of him within
that time, raises the presumption that he is dead, and the
jury on proof of such absence have a right to presume his
death. A less period will not suffice to raise the presump-
tion, but a party whose interest it is to show that he was
living within that time is at libert}' to show it by such facts
and circumstances as will inspire that belief in the minds
of the jury. As in this case the demandant, to make out

RULE 43.] THE PRESUMPTION OF DEATH. 207

her right to bring her action, had only to show hor husband
hud not been heard of from the 21.st of March, 1852, to
the 21.st of March, 1859, the presumption of hiw then
comes in that he was dead on the 22d of March, 1859,
being seven years from the time he was hist heard of.
This is all the proof she was required to submit, the mar-
riage being established and no question being made as to
the title of her husband. "When she by competent proof
raised this presumption of death, to what period of time
did it extend? The answer is plain, — her right to sue did
not exist until the death of her husband was established,
and as that was not established until the 21st day of March,
1859, the presumption took effect on that day; then, in
leiral contemplation, her husband was not among the liv-
ing."

Case V. was decided in New Jersey, where by statute a
person is presumed to be dead after seven years' absence
without beinor heard of. The court said: "It is ur;2;ed
that although at the end of seven years the law presumes
that the absent party is dead, there is no presumption ivhen
he died ; that the law was designed to furnish evidence of
the fact of the death, but not of the time of the death.
This view of the operation of the statute was adopted by the
Court of King's Bench and Exchequer in Doe v. Nepean^
and appears to be the settled doctrine of the English courts.
The same view appears also to have been adopted in some
of the American decisions. * * * j^ the present case
this view of the statute must give rise to much more serious
embarrassment, and will defeat a recovery of the fund by
either party from the impossibility of ascertaining when
the legatee died. The child of the special legatee, to
entitle himself to recover, must show that the legatee
survived the testatrix, otherwise the legacy lapsed. The
residuary legatee, to establish her claim, must show that
the special legatee died in the lifetime of the testatrix, for
in that event alone is she entitled to the fund. And no
length of time will remove the difficulty, so that the title to

20S PEESUMPTIYE EVIDEXCE. [rULE 43.

the fund must forever remain unsettled. Similar embar-
rassments, it is obvious, will be encountered in numerous
cases in "which the aid of the statute may be invoked. A
construction which leads to such results ought not to
be adopted, except for the most cogent reasons. It will
greatly impair the beneficent design of the statute, which
was, I apprehend, to furnish a legal presumption of the
time of the death as well as of iliQ fact of the death. And
that design it accomplished by the fairest rules of in-
terpretation. The legatee is proved to have been living
about three years before the death of the testatrix. The
legal presumption, indejiendent of the statute, is that life
continues until the contrary is shown or until a different
presumption is raised. In the absence of the statute the
presumption would be that the legatee is still alive. The
design of the statute was by an arbitrary rule to fix a
definite limit to that presumption of the continuance of
life by a contrary presumption that life has ceased. But
the presumption of life ceases only when it is overcome
by the countervailing presumption of death. And the real
question is not whether the statute furnishes any evidence
of the precise time of the death, but whether it furnishes
any evidence of the occurrence of death before the end of
the seven years. If it does not, the presumption of life
continues by well settled rules of evidence independent
of the statute. Tlie py^esumption of death lohich arises
upon tlie expiration of the seven years can not act retro-
spectively. * * * There may be circumstances which
will create a presumption in fact of the death of an absent
party within seven years. But this in no wise affects the
legal presumption created by the statute, and in the absence
of such circumstances the presumption of life continues
until arrested by the statute. It is no answer to say that
the probabilities are that death did not occur at the expira-
tion of the seven years, but at some other time within
that period. The time of the death, as well as the fact
of death, are presumptions not of fact but of law. The

RULE 43.] TUE rr.ESUMrTIOX OF DEATH. 209

law refTjircIs neither as certain. It simply declares that the
party shall be presumed to be dead at the expiration of the
seven years, whenever bis death shall come in question.
The lanf^uaire of the statute, as well as that of G Anne and
19 Charles I., for which our statute was designed as a sub-
stitute, clearly indicates that an arbitrary rule was designed
to be established, by which the rights of parties litigant
might be determined in the absence of more unequivocal
proof, however inconsistent that presumption might be
with the actual truth of the case. This view of the effect
of the presumption created by the statute is sustained by
the great weight of American authority. It appearing that
the special legatee was in life about three years before the
death of the testatrix, the presumption is that he continued
in life until after the death of the testatrix, and that con-
sequently the legacy did not lapse. More than seven years
having elapsed since the legatee was last heard from, the
legal presumption created by the statute attaches. The
legatee is now presumed to be dead, and the next of kin
is entitled to the fund."

In case VI., it was said: *' Not only convenience, but
necessity, calls for a definite rule to produce certainty of
result in the determination of facts which must be passed
upon without proof; and such can be obtained only from
the doctrine of presumptions which however arbitrary, is
indispensable, and when founded on the ordinary course of
events, productive of results which usually accord with the
truth. There is nothing so frequently unattended Avith the
ordinary means of proof, and yet so essential to the deter-
mination of a right, as the time of an individual's death.
The common law soon had recourse to presumption for the
continuance of life, by casting the proof of its cessation
on him who alleged it ; yet it must have been obvious that
a counter presumption of superior power, founded in expe-
rience of the ordinary duration of human existence, and
leading to a certain conclusion of death, might be raised
from lapse of time alone. The latter, however, would be

210 rr.ESUMrTivE evidence. [rule 43.

but a natural presumption, producing not constructive
belief, but actual conviction, and failing to apply its rule
to cases without regard to circumstances, it would be inad-
equate to the necessities of legal adjudication. Sensible of
this, the English judges provided for these necessities by
limiting in analogy to their statutes concerning leases and
bigamy, the presumption of life to the period of seven
years. These statutes are not in force here, nor have we
any of our own which correspond to them ; consequently
the period assumed with us must be an arbitrary one, just
as is the period for the presumption of payment, which
corresponds with the Englit;h Statute of Limitations to bar
an entry instead of our own. The period assumed by the
English judges, however, is a reasonable one, and we have
been cautiously, but constantly, approaching it. That it
had not already been arrived at, as in some of our sister
States, by direct decision, is to be ascribed to the absence
of a case which required it. Such a case now occurs ; and
the principle is to be considered as definitively settled. But
the presumption of death, as a limitation of the presump-
tion of life, must be taken to run exclusively from the
termination of the prescribed period ; so that the person
must be taken to have then been dead, and not before.
Indeed that is a necessary conclusion from viewing it, not
merely as a limitation, but as a countervailing presumption,
which as it does not supplant its predecessor before the end
of the period, assumes no more than that the individual
and the period expired together ; and the predecessor being
still in force to rule the case, in respect to the time covered
by it, is sufficient to sustain an inference of intermediate
existence throughout. Thus the presumption of life con-
linues till it is displaced by a more potent one, which hov/-
ever has no retroactive force; and indeed it would be of
little use if it had, for to leave the time of the death still
uncertain, would leave a perplexity which it was its purpose
to remove. It is undoubtedly true that additional circum-
stances of probability may justify a presumption that the

RULE 43.] THE PRESUMPTION OF DEATFI. 211

death was still sooner; but these, where they operate,
introduce a distinct and dissimihir principle. What seems
to me to be a palpable error of Chief Justice Denman in
KnUjht V. Nfpean^ on the authority of which the present
case was ruled below, is the view he took of tiie presump-
tion of death, from the efflux of a definite period, as being,
in some measure, a natural one, operatinjz; within the period
and in proportion to its tendency to produce actual belief,
and not merely as an artificial one tending to the legal con-
clusion of a fact without the period, which independently
of circumstances a jury is bound to draw. A similar want
of attention to its class produces those loose and indeter-
minate dicta y in regard to the presumption of payment,
from the lapse of time, which were noticed in Henderson
V. Leiois} It certainly has not been expressly decided that
the person must be taken to have lived throughout the
period; but that conclusion inevitably follows from the
legal presumption of life, which though prospectively
rebutted at a particular period, is sufBcient to sustain the
allegation of existence during the time it lasted. On the
other hand there it no precedent to the contrary; for the
presumption in Watson v. King^ which grew out of the
probable fate of a missing ship, rested on circumstances
very different from those which are usually connected with
the probable fate of an absent individual. In the case at
bar therefore we must say there was an error in leaving the
jury to presume the death to have been at an intermediate
period, unless we discover in the case at least a spark of
evidence that the individual was, at some particular date,
in contact with a specific peril as a circumstance to quicken
the operation of time."

By the civil law, an absentee whose death is not proved
is presumed to live until he should have attained the age of
one hundred years, which term is regarded as the most
remote period of the ordinary life of man. *' Death is

1 9 S. & R. 3S1; 11 Am. Dec. 73:.

212 PKESUMPTIVE EVIDENCE. [rULE 44.

never presumed from absence ; therefore be wbo claims an
estate on account of a man's death is alwa3's held to prove it.
An absentee is always reputed living until bis death be proved
or until one hundred years have elapsed since his birth ;
although a man be absent, and there be no account of him,
his death is not to be presumed ; they do not proceed to a
division of his estate, for he is presumed to live one hundred
years." 1

RULE 44. — An " absentee " witliin Rule 43 is one who
lias left liis residence, home, or domicil, either tem-
porarily (intending to return) or permanently (intend-
ing to establish a fixed residence, home, or domicil
elsewhere.) (A). Where the removal is temporary,
absence alone, without being heard of, is sufficient to
i*aise the presumption of death within Rule 43. But
where it is permanent, without intention to return,
the presumption does not arise until inquiry has been
made at the fixed I'esidence, home, or domicil^ (B).

Illustrations.

I. E. was married to C. in 1847, and lived with him for three years in
L., when, on account of his dissipated habits, slie left him, and went to
live in another place. Here, in 1861, she is married to T., believinji C.
to be dead. C. turns out to be living. There is no presumption that C.
was dead when T. married her, and he is guilty of adultery.^

II. *E. was married to S. in New Jersey in 1848, In 1853 she left him,
and went to reside in California. In a suit in California in 1868, she tes-
tifies that she has not heard of S. since 1850. There is no presumption
that S. was dead in 1864.*

III. The question is whether A, is alive. It is proved that A. has not
been heard of in H. for twenty years. There is no evidence that A.

1 Hayes v. Bewick, 2 Mart. (La.) 131; 5Ain. Dec. 727 (1812); Watson v. Tindal,
24 G a. 404 (IS.'JS).

2 Wentworth v. Wentworth, 71 Me. 83 (1S80) ; Bailey v. Bailey, 3G Mich. 185 (1877) ;
Brown v. Jewett, 18 X. II. 230 (181G),

3 Com. V. Thompson, 11 Allen, 25 (1865).
* Garwood v. Hasings, S8 Cal. 229 (1SG9),

RULE 44.] THE ruESUMITIOX OF DEATH. 213

ever osttiblishecl his residence in 11. There is no presumption tliat A. is
dead.i

IV. A. dies in Missouri in 1803. Her son J. is at the time residing in
Louisiana. Nothing has been heard in Missouri of J. for over seven years.
There is no presumption from this that J. is dead.-

In easel, the trial judge instracted the jury that when
a wife departs from her husband and remains absent and
distant from him, without knowledge or inquiry respecting
him, no presumption of his death arises from the fact that
she had not heard from him for seven years, which would
justify her in marrjing and cohabiting Avith another man,
and justify another man in marrying and cohabiting with
her. In the Supreme Court this was affirmed. ** The most
favorable view," said Dewey, J., ** in which this defense
could be sustained was that stated in the former opinion,
that if it appeared that the husband had absented himself
from his wife and remained absent for the space of seven
3'ears together, a man who should, under the existence of
such circumstances, and not knowing her husband to have
been living within that time, in good faith and in the belief
that she had no husband, intermarry with her and cohabit
with her as his wife, w^ould not by such act be criminally
punishable for adultery, although it should subsequently
appear that the former husband was still living. But the
case is wanting in one of the essential facts stated as the
foundation for a right to presume the death of her husband.
It is only to the person who leaves his home or place of
residence, and is gone more than seven years and not heard
of, that this presumption is applicable. Here, the wife
went away, and the husband, for aught that appears,
remained at Lawrence, or in the vicinity. * ♦ * Wq
see no sufficient ground for any presumption of the death of

1 Stinchfleld r. Eniernon, 52 Me. 405 (I^SBO).

3 McKee v. Copelin, 2 Cent. L. J. S13 (1S75). "Although persons absenting them-
selves bej-ond sea or elsewhere for seven years successively are to be presumed
dead, yet, as Imlay has not been proven to have so absented himself from the coun-
try of his residence, his death ought not in the present contest to bj i)re6umed."
Spurrr. Trimble, 1 A.K. JIarsh. 279 (1818). rresumption of death will not ho made
as to one who has acquired a home and domicil in another state ; and this is known
in the State of his former residence. Smith v. Smith, 49 Ala. 150 (1873).

214 PREsmiPTivE EVIDENCE. [kule 44.

the husband upon which the wife of C. or the defendant
could properly have acted. The Superior Court very cor-
rectly marked the distinction."

In case II. it was said : *' A person who is shown to have
been absent from the State or place of his residence for a
jieriod of seven years without any intelligence having been
received from him by his family, acquaintances, or others
who continue in the immediate neighborhood of such resi-
dence, is presumed to be dead. Such absence must be
shown to have been from his last known place of residence.
In this case no such proof is made. It is not shown that
Ebenezer Sooy ever acquired a residence in this State; for
aught that appears, his residence may have been in the
State of New Jersey since his marriage in 1848. The wit-
ness, Eliza S. Kinsey, who was married to Sooy in New
Jersey in 1848, by her own testimony, is found residing in
San Francisco, Cal., as early as 1853, five years after her
marriage with Sooy, underau assumed name, since which time
she has taken several other names, but so far as shown at no
time has she recognized the name of Sooy. Her own testi-
mony raises a very strong probability that since coming to
California she endeavored to evade and conceal herself from
her first husband Sooy. Under such circumstances I do
not think a presumption of Sooy's death can properly arise
from her simple statement that she has not seen or heard
from him for seventeen years."

B.

I. In 1813 C. left her residence in N. Y. and went, to reside in B. Siie
was heard of in 1820 through letters received from Iier written from B.
There is no presumption that she was dead in 1828 from the fact alone
that her relatives in N. Y. have not heard from her after 1820.1

II. In 1840 T. moves his family to Salt Lake City from Kentucky. The
fact that they have not been heard from in Kentucky for twenty-live year^
does not raise a presumption that they are dead.'

III. A. left England in 1829 to reside in America. In June, 1831, his
brother-in-law received a letter froni a stranger in New York soliciting

1 McCartee v. Camel, 1 Barb. Ch. 403 (1846).

2 Grey v. McDowell, 6 Bush, 482 (186&).

RULE 45.] THE TRESUMPTION OF DEATH. 215

aid for A., and stating that ho had changed his name to B. Three
months latur A.'s wife sent a letter to A., addressed to B., but tlie person
to Avhom it was Intrusted couhl not find liini. He was not lieard of any
more, and no subsequent inquiries were made. There is no presumption
tlial A. died in 1838.1

Even when a person whose existence is in question has
remained beyond sea for seven years, it was said in case I.,
" if ho had a known and fixed residence in a foreign country
when lie was hist heard from, he ought not in justice to be
presumed dead without some evidence of inquiries having
been made for him at such known phice of residence with-
out success. For the average duration of life of persons
under sixty years of age is more than twice seven years,
and in the present state of society in this and other commer-
cial countries no presumption of the death of an individual
does in fact arise from tiio mere circumstance that he
has fixed his domicil abroad, and has not been heard of at
tlie place of his birth or of his original residence for more
than seven years."

In case III. the vice-chancellor said that unless it was
proved or admitted that no further information of A. could
be obtained, he could not presume A. dead. Nothing had
been shown to have been done in the way of effectual
inquiry.

RULE 45. — *' Persons who would naturally have hoard
of him " within Rule 43 is not confined to a particular
class; they may be relatives or strangers.-

Illustratioyis.

I. The question is whether A., who went from IMassachusctts to Cali-
fornia in 1850, is living In 18G0. Evidence that various persons — not
relatives of his — had heard from him in 1856 is admissible.*

1 Re Creed, 1 Drcwry, 235 (1S52) . Rut the rule is different where by statute "a
person absent for seven years is presumed to be dead." Absence for the time with-
out proof of inquiry is sufllcient prima facie evidence. Smith r. .<^mitli, 6 X. J. Eq.
4S4 (1840)) ; and see, Osborn v. Alien, 2t) N. J. L. 3S8 (1S57) ; Wambaugh v. Schenck, 2
N. J. L. 1G7 (1S07).

2 Wentworih v. Wentworth, 71 Me. 73 (1880) ; Bailey v. Bailey, 36 Mich. 18.5 (1877).

3 Flynn v. Colfee, 12 Allen i;i:5 (1SG6) ; Doe v. Deakin, 4 P.. & Aid. 4:5:5 (1821). In
Clarke r. Cuuimings, 5 Barb. Sbi (1849), it was said: "What is a reasonable search

21G PRESUMPTIVE EVIDENCE. [rULE 46.

In case I. it was said that there is no rule of law which
confiues such intelligence to any particular class of persons.
It is not a question of pedigree. *' If the demandant's
husband had been heard of as living within seven years,
though by persons not members of his family, it would cer-
tainly affect the presumption upon which she relied."

RULE 46. — " Not been lieard of " witliin Rule 43 means
that none of the " persons '* referred to in Rule 45
have heard any thing about him which sliould or
would raise a reasonable doubt in his or her mind
that he really was no more.

Illustration

I. The life of N. being insured in a life insurance company, an action
was brought on the iiolicy in 1874, and the question was whether N. was
then dead. He had left his home in England for Australia in 18G7, and
had not been heard of or seen by any one since, except as follows : A niece
of his, one Mrs. C, being in Melbourne in January, 1872, saw a man on the
street whom she believed to be her uncle N., but he was lost in the pass-
ing crowd, and she was not able to speak to him. She wrote of this to
her mother and on returning to England spoke of it to the relatives, but
they all thought her mistaken. If the evidence of Mrs. C. was believed,
N. had been " heard of" within the seven years; but if it was not believed,
on reasonable grounds, then N. had not "been heard of" within the rule, i

In case I. the trial judge, after telling the jury that not
being " heard of " meant that no member of the family had
heard anything about him which might raise a reasonable
doubt in their minds, whether he was dead, added; " You
can not say that a man has never been heard of, when in the
first place one of his nearest relations comes and says she
saw him alive and well within three years ; still less can you

and inquiry for the lives upon the continuance of which the estate of the defendant
in this case was made by tiie terms of tlie lease to depend, Is a mixed question of
law and fact to be determined upon the particular circumstances of the case.
What would be reasonable in one case might not be in another. I am of the opinion
that the circumstances may be such as to render an inquiry of the tenant only a
reasonable inquii-y. If it were pi'oved that the tenant were the only relation of the
y)erson whose life was in question living in the vicinity of the lands, then an inquiry
of the tenant would bo enough;" and see Gillelandt'. Martin, 3 McLean, 400 (1844).
1 Prudential Assurance Co. v. Edmonds, 3 App. Gas. 487 (1877).

RULE 4G.] TIIK rRESUMPTIOX OF DEATH. 217

say that he has never been heard of uhcn every member
of tlic family states that they heard that which is now
stated." On appeal this was held crnn-. " The direc-
tion," said Lord Chancellor Ilatherly, "seems to me to
come to this : In the first place, if the jurymen behoved
Mrs. C.'s assertion to be correct, and thought she had seen
him alive and well, of course that ends the case. But then
he adds : ' Still less can you say that ho has never been
heard of when every member of the family states that they
heard that which is now stated.' Now as far as that extends,
if it remained there, there Avould have been great reason
for the jurymen to infer from that direction that it would
be impossible for them whatever might be the value of Mrs.
C.'s evidence, to consider the presumption as arising when
every member of the family had heard what she said,
because, be it true or be it not true, the fact of their having
heard it would prevent the assumption arising. I think that
would he the reasonable inference from that language ; but I
think it becomes clearer as you go on, that that would be the
interpretation that w^ould force itself upon the mind of the
jury, because what the learned lord chief baron goes on to
say is this : * You can not have any one called before j'ou
that saw him die, or saw him buried. You have, therefore,
no direct evidence, except the evidence that he was alive two
or three years ago ; on the other hand you have no evidence
whatever upon which you could found the presumption
that he is dead, that is, that he has never been heard of by
any of his relations for the space of seven years, when you
find that every one of the relatives has come forward, and
every one of the relatives heard that he was alive.' There-
fore it appears to me that the lord chief baron plainly and
distinctly directed the jurymen that they had no evidence
before them at all upon which the presumption of law could
arise, because the presumption of law requires that those
relatives should not have heard of him, and 3'ou find that
all those relatives did hear of him. Of course, in reality.

218 PRESUMPTIVE EVIDEXCE. [rULE 46.

that turns upon whether they believed Mrs. C. or not, and
whether the rcUitives havinf^ heard of lihn from her, they
were bound to accept that as knowledge and so the pre-
sumption of death should be disposed of. On the other
hand, my lords, 1 apprehend that that is not the law at all.
That would not be such a hearing as could lead you to a rea-
sonable ground, for believing that the man was alive within
the epoch. I apprehend, my lords, that the jurymen are
not here directed, as it appears to me they ought to have
been, that the evidence given by the members of the family,
as to not having heard of him was fit to found the presump-
tion upon if they came to the conclusion that Mrs. C.'s
story was not to be believed. On the contrary, it seems to
have been laid down in clear and precise terms, that if every
member of the family has heard of him, whether by a credi-
ble story or not, then there is a probability of his being
alive, and the presumption of death would not arise."
And Lord Blackburn in the same case added: "The
plaintiff had failed in proving the actual death of Eobert
Nutt, and then he relied upon the rule of law which is gen-
erally laid down in something like these terms: If a man
has not been heard of for seven years, that raises the pre-
sumption that he is dead. It is generally so enunciated.
I do not say that that is the correct way of enunciating it,
but I think it may be fairly enough put in those words for
this purpose. I think having regard both to the reason
of the thing and the decisions, we must take ' not being
heard of ' in a certain sense. There was seldom or never a
man who had reached the age of forty with regard to whom
it would not be easy to call scores of people to say, * I was
at school with him, I knew him perfectly well, and I have
not heard of him for the last seven years.' But that would
not be enough to raise a presumption that he was dead,
because if ever so much alive, those people might not have
heard of him. My lords, it appears from the case of Doe

RULE 46.] THE PRESUJIPTION OF DEATU. 219

V. Andreiv,^ that it is nccess.iiy, in order to raise the pre-
sumption, that there should have been an inquiry and search
made for the man among those who, if lie was alive, would
be likely to hear of him. Perhaps it is not quitean analogy,
but it is something like the case of a search for documents ;
before you are allowed to give secondary evidence of a
document, you must search the places where the document
would in the natural course of thinj^s be, if it were still in
existence ; and having proved that you have done that, you
may then give your secondary evidence. In like manner,
in order to raise a presumption that a man is dead from his
not having been heard of for seven years, you must inquire
amongst those, who if he was alive, would be likely to hear
of him, and see whether or no there has been such an
absence of hearing as would raise the presumption that he
was dead. In this case the plaintiff undertook to do that,
and called first a witness who said so, but afterward said
tliat ho * had heard a report that a Mrs. C. had seen him ' in
Australia, but that he did not believe it. I am inclined to
think that having heard a report would hardly be such a mat-
ter as would prevent the fact of the witness saying he had not
heard of him being evidence as far as it went. * * *
Supposing the jurymen had found, as a fact, that they
thought she was mistaken, would or would not the grounds
have existed upon which the presumption from a seven
years' absence would arise that the man not heard of was
dead? I think certainly they would. It seems to me that
when she said, ' I have seen the man in the streets of Mel-
bourne,' it upset the presumption arising from the relatives,
including herself, never having seen or heard of him, and it
turned the onus the other way. It was possible, however, that
it might have been proved that the man she saw was not
Robert Nutt, but somebody else. If that had been proved
it would have lel't the matter just as if she had never made
that statement. When she said she thought she had seen

1 15 Q. B. 751.

220 PRESU-AIPTIVE EVIDENCE [iJULE 4G.

him, and all the others had heard it from her, although that
unexplained and uncontradicted statement affected the omis,
yet as soon as it was made out by satisfactory evidence that
she \vas mistaken, the hearing from her was gone, and the
presumption would remain as it was before. Kow, my
lords, of course it is essential for the purpose of saying
whether the proper direction was given by the judge or not
to see what the proper direction would have been, and then
to see if that which would have been the proper direction
was given to the jury. I think jurymen, who were not
lawyers — nay, I think many lawyers themselves, — would
be under the impression that the commonly enunciated rule
about a man's not being heard of for seven years, would
mean that there has not been a physical hearing of him,
and that if the relatives had been told of somcthinsr which
haj^pened within the seven years, from which they believed
that he was alive, that would be a hearing of him, and that
would put an end to the presumption, though it might be
proved that the information so brought to the relatives was
positively untrue. I can not think that but they might
think it. They might imagine that the rule of law was
absolute and positive that hearing was enough. If that be
so, I take it, that it is clear that the lord chief baron
ought to have given them a direction, that in the event
of their coming to the conclusion, whether rightly or
wrongly, that Mrs. C. was mistaken when she said she saw
her uncle, and that she did not see him, then there was an
absence of ground for believing that he was alive within the
seven years, the period sufficient to raise the presump-
tion. * * ♦ Now what are the jurymen told? They
are told, * not being heard of, means this, that no member of
the family has heard any thing about him which might raise a
reasonable doubt in their minds whether he must have been
no more.' I do not think that in the circumstances that is
strictly correct, because I think, though it might raise a
reasonable doubt, which would of course shift the presump-

nULE 4G.] THE PRESUMPTIOX OF DEATH. 221

tion, yet the facts might be made clear the other way, and
it might be shown that the reasonable doubt was not well
founded as in this supposed case. If a respectable person
came and said your brother, whom you think to be dead, is
alive; I saw him and spoke to him yesterday; everyone
must feel that would raise a reasonable doubt, and that, if
undisputed, it would put an end to the seven years' pre-
sumption. But supposing the other side should be able to
call witnesses to satisfy the jury that the person who thought
that he had seen him was quite mistaken, was deceived, the
relatives having previously believed that the man, Avho had
told them he had seen the brother, was telling them the
truth, could it be said, after it was proved that the man
who told them that had been cheated into the belief that he
had seen the brother, could it be said that that evidence, so
explained, put an end to the presumption arising at the end
of seven years ? I apprehend not ; yet the wording of the
lord chief baron in the first line might have led the jury to
think so ; and I must acknowledge that when I read the
whole through, I think it did lead the jury to think so;
whether so meant or not. * * « j have already said
that verbal criticism ought not to be applied in a case like
this; but looking at the particular circumstances before
them, and the particular contention of the plaintiff 's coun-
sel, as set out in the bill of exceptions, I can not help think-
ing that that would be understood by the jury to mean : If
Robert Nutt has been heard of, no matter how or where,
and even you are satisfied that the hearing was founded
upon a mistake, that mere fact of hearing is enough. That
I think would be a misdirection. » * * I'lie learned
chief baron says : There is no evidence ; had he said. Unless
you think that the 3'oung woman's recognition was mis-
taken, there is no evidence which would raise the pre-
sumption; but if it is proved alErmatively to your minds
that she was mistaken, there is evidence which would raise
the presumption; — had he said that, it would have been
allriL^ht."

222 PRESUMPTIAE EVIDENCE. [rULE 49.

RUIjE 47. — The absentee's "residence, home or domi-
cil," within Kule 44 refers to that place which he
first departed from, and does not include places where
he may have afterward resided or visited.

Illustration.

I. In 1843 C, who resided with his wife and family in H., left there,
leaving his wife and family behind. Letters were received fi*om him
from parts of Illinois until 1849, since when he was never heard of.
The presumption is that C, died in 1856.^

It was argued in case I. that before the presumption
could arise, the party must be proved to be absent from his
last residence or place of abode for seven years. But it
"vvas answered by the court that if this were so, the longer
he was absent the stronger would be the proof that he had
changed his domicil, and therefore the proof that he was
absent from home would be diminished. The cases do not
sustain the distinction contended for nor does it rest oa a
sound and logical foundation.

KULE 48. — But the presumption will arise that the
death of the absentee has occurred before the expi-
ration of the seven years from being last heard of,
where any of the following circumstances are shown,
viz.: See Rules 49, 50, 51, 52.

RULiE 49. — That within that time he was in a des-
perate state of health.

Illustrations.

I. In 1780, J. left his home for a visit, to return in six months. He
was then in a " desperate state of health." He never returned, and was
not afterwards heard of. In 1803, the question was whether J. or S.,
who died in 1785, had survived the other. The presumption is that S.
survived J.2

1 Winship v. Conner, 42 N. II. 344 (18G1.)

2 AVebster v. Birchmore, 13 Ves. 362 (1807) ; and see Eagle's Case, 8 Abb. (Pr.) 218
(1830J ; or was of grossly intemperate habits when last heard ol, btonvenel v.
Stephens, 2 Daly, 323 {ItsHS).

RULE 50.] THE PKESUMPTION OF DEATH. 223

II. In July, 1852, H. quitted England for America, and wrote home
announcing his safe arrival in New York. He was in declining health
when he left home, and from his character and habits would have been
likely to have kept up his correspondence. He was never afterwards
heard of. In September, 1853, his father died. The presumption is that
II. died in his father's lifetime. ^

III. It is shown in a case arising in 1843 that H., whose deposition
was taken in 1822, was then fifty-nine years old and in ''bad health."
Tills does not rebut the presumption that he is alive, the phrase "bad
health" not being specific enough.^

In case III. it was said : «' Neither does the circumstance
that the witness was in * bad health ' in 1822, infer, as
necessary consequence, that he is now dead. The difficulty
is here, that the expression ♦ bad health ' is undeterminable.
There are manifold sorts of bad health and many degrees
in most of them. Show me that H. was the subject of
some quick, consuming disease or of any specific malady
at all, and you will change the case. Suppose that his bad
health was temporaiy, or that the expression means only
that his health was not robust. A man in bad health at one
time may recover afterward; that depends entirely upon
the nature of his disorder and mode of treatment and
vjo-or of his constitution. And the valetudinarian often

c

prolongs an existence beyond him who in the carelessness
of health may be suddenly cut down. " In the case cited
from 13 Vesey^ the health was very bad — the chancellor
speaks of it as despey^ate.''

RTTLE 50 — That within that time he embarked on a
vessel which has not since been heard of and is h)ng
overdue (A), inquiries having been made at her ports
of departure and destination (B).

Illustrations.

A.

I. In 1842, M. sailed on a vessel going from Y. to B. The ordinary
voyage from Y. to B. lasts a mouth. The vessel ou which M. sailed

1 Diinby v. Danby, 5 Jur. (X. S.) 54 (1S59).
a Kc Hall, 1 Wall. Jr. 85 (l^Z).
* Webster v. Birchmore.

224 PRESUMPTIA'K EVIDENCE. [rULE 50.

neror ivarhcrl B. The question being, in 1S45, v^-hclhcr M. is now aiive,
the presumi^ion is that ho is dcad.i

II. On :March 11, IS'll, J. sailed from New York to Liverpool on the
slearaship President. Nothing was ever heard of the ship or of any
person who sailed in her after she left the harbor of New York. The
ordinary time for steam passages across the Atlantic from New York at
this time was fourteen or fifteen days, the longest did not exceed twenty-
four days. The ordinary passage of sailing vessels was thirty days, the
longest forty. The question is whether J. was alive on May 1, 1841.
The presumption is that he was dead at that time.'

III. Captain T. departed with his vessel, The Helena, on a voyage,
the ordinary limit of which was four months. Seventeen months expired,
and nothing was heard of her or the crew. Seventeen months was more
than sufficient to have heard from all the commercial ports in the Avorld.
The presumption at the end of this time is that the vessel was lost, and
that those on board, including Captain T., have perished. ^

IV. G. was commander of the United States sloop of war, Albany,
which left Aspinwall for New York September 28, 1854:. Up to November
1, 1855, nothing had been heard of G. or any of the officers or crew of
the vessel. In an action brought by G., and pending at that time in the
New I'ork courts, judgment was entered in his name on November 27,
1854. Eighteen days is the outside time for a passage from Aspinwall to
New York. The presumption is that G. was dead on November 27th, and
the judgment is void.*

V. On January 27, 1857, M. sailed from Liverpool to Valparaiso. The
voyage should have been made in ten weeks. In January, 1858, nothing

1 VThite V. Mann, 26 Jle. 363 (1841) ; Patterson v. Black, Park, on Ins. 919 ; "Watson
V. Maxwell, 1 Stark. 121 (1S15) ; Re Ilutton, 1 Curt. 595 (1837) ; Re Cook, Ir. Rei). 5 Eq.
240 (1S71) ; Eagle's Case, 3 Abb. Pr. 218 (1836).

2 Oppcnheim v. De Wolf, 3 Sandf. Ch. 571 (1846).

3 Merritt v. Thompson, 1 Hilt. 550 (1858). An interesting note is appended to the
report of this case as follows; " This case was decided in New York City, April 3,
1858, and five days later the following paragraph appeared in the New York Tribune:
'A Lost Captain Found. The New Y'ork correspondent of the Boston Journal states
that some three years ago the report reached New Y'ork that the ship Helena was
lost. Her commander, Captain Thompson, had with him liis son, and left in New
Y'ork his wife and several children. Ilis cargo was a load of coolies; and it was
lielieved that the cargo had risen and murdered the crew. The insurance office
paid the policy, and an administrator Avas appointed for the estate. But Mrs.
Thompson has had unwavering faith that her husband and son were alive and
would both return. This week a vessel arrived at this port, and states tliat they
passed and liailed a vessel bound for China, which had on board Captain Thompson
and crew of the Helena. Tlie news has been hailed with joy, and public thanks-
giving was given last Sabbath in the Mariner's Church. Upon inquiry, however,
this was not the Captain Thompson referred to in tlie above case; nor has he nor
his vesssel since been heard of." The result justified the legal presumption in this
case at least.

« Gerry v. Post, 13 How. (Pr.) 118 (185£).

RULE 50.] THE rilESUMI'TIOX OF DEATH. 225

has since been heard of the vessel or its crew. The presumption is that
M. is dead.i

In case I. it was said tLiat insurance companies, recog-
nizing the inference, were in the habit of l)ayii)g insurance
on vessels after the hipse of a ycav wiien a vessel sailed
from an American to a European port and was not beard
of. '* One who has sailed in a vessel which has never been
heard of for such length of time as would be sufficient to
allow information to be received from any i)art of the
world to which the vessel or persons on board might have
been expected to be carried, and who has never been heard
of since the vessel sailed, may be presumed to be dead."

In case II. it was said: " The decisive point is the time
of J.'s death. The precise time will never be known till
the mighty deep gives up its dead at the last great day.
For the purpose in hand we must have recourse to the dic-
tates of common experience and legal presumptions. J.
departed from this port on the steamship President, on the
11th day of March, 184:1. Nothing has ever been heard
of the vessel or of any of her passengers or crew from that
day to the present. The usual time for steam passage
across the Atlantic from New York has been fourteen or
fifteen days, and the longest passages have not exceeded
twenty-three or twenty-four days. Forty days is a long
passage from hence to England in a sailing vessel of ordi-
nary quality, and the outward trips of our packet ships are
seldom be3'ond thirty days and oftener under twenty-five.
These are facts forming a part of the experience and com-
mon knowledge of the day, and as such are legitimate
ground for the judgment of the court. Now it is very
true that the ill-falcd President may have become disabled
and drifted about for weeks and weeks, before she was
finally engulfed by the waves of the Atlantic. But what
was her probable fate? A regular and tolerabl}^ fair pas-
sage would have carried her to England before the last day

^^ 1 ReMain, 1 Sw. &Tr. 11 (1S58).

22o PRESUMPTIVE EVIDENCE. [rULE 50.

of March, 18-41. If she had become a wreck and had been
buffeted to and fro upon the ocean, the chances would
have been greatly in favor of her being seen by some one
of the many sail that are constantly passing between the
United States and Europe. The fact that she had the
recourse of both sails and steam, thus doubling her chance
of making some port in case of disaster; and the impene-
trable cloud that has always hung over her end, lead the
mind irresistibly to the conclusion that she must have gone
to the bottom before she had been six weeks out of New
York ; and the strong probability is that she was lost
within a few days after her departure. This is a different
question from the one presented, when it is to be deter-
mined whether a sufficient time has elapsed to compel pay-
ment of an insurance on a missing vessel. Then all the
chances in favor of safety are suffered to expire, before the
final and last step is taken by the payment of the loss.
Here the fact of the death of the party is conceded, and
the inquiry is, when did it happen? In the case of the
insurance after Avaiting for a year from the sailing of the
missing ship, and then paying the loss, it is not paid
on the presumption that the vessel was lost only on the day
that payment was made ; but on the supposition that she
must within the longest customary period allowed for such
vessels to reach their port of destination. It is a general
rule that if a ship has been missing and no intelligence
received of her within a reasonable time after she sailed,
it shall be presumed that she foundered at sea. The under-
writers are permitted to wait until intelligence of the miss-
ing vessel can no longer be reasonably expected. So the
Surrogate's Court will delay the grant of administration
upon the estate of one who sailed in such a vessel, while
hope proclaims a chance of his safety. But when the
expectation of tidings of ship and passenger is entirely
exhausted, and the underwriter and the surrogate acted
upon the legal presumption of the loss of both, that pre-
sumption relates back to a time far anterior to the period

RULE 50.] THE rUESUMPTIOX OF DKATII. 227

when such action takes place. It is a presumption founded
upon common sense and experience, and leads to the con-
clusion that the loss occurred within the longest usual dura-
tion of a voyage from the port of departure to that of the
ship's destination; because a loss within that tinic is far
more probable than that the vessel after becoming disabled
should have drifted about for any considerable period, at
the mercy of the waves, without encountering some other
vessel or ultimately reaching the land.^ * * ♦ ^pj^g
authorities fully sustain my conviction that the steamer
President must be deemed to have been lost before May,
1841."

In case Til. it was said ** The presumption of his death
does not rest upon the fact that he has not been heard of
for seventeen months, but upon the weightier circumstance
that the vessel has not been heard of. It is suggested that
she may have been lost or destroyed by pirates, and the
defendant have survived; that considering the dangerous
nature of the navigation in which he was engaged, and the
character of the islands of the Pacific where he may have
landed, it is not unreasonable to suppose that he may still
be living. The supposition that a man may be living is not
unreasonable w4iere nothing is known to the contrary, until
the natural limit 'of life has been^^jjassed. It is possible
that the defendant may be alive, but tlial would be possi-
ble fifty years hence. The question is not whether it is
possible he may be alive, but whether the circumstances of
this case do not warrant that strong probability of his
death upon which a court of Justice should act. Forty
j'cars after the belief had become universal in Europe that
the vessels of La Perouse and all on board of them had
perished, discoveries were made rendering it highly probable
that he and some of his companions had survived, and had
lived for many years on one of the islands, forming part

1 As to the presumption of the loss of a vessel under such circmnstanccs, see
Ilouseniaa v. Thornton, Uolt X. P. 242; Xewby r. Reed, Park, on Ins. 8o; Brown r.
Neilson, 1 Caines, 525.

22S PKESUMPTIVE KVIDENCE. [rULE 50.

of the great groups through which the vessel of the defend-
ant mu;>t have passed in the successful prosecution of her
voyage. The suggestion that La Perouse might still be
living, would have availed little in a French court against
the chiim of the heirs to inherit. It would be presumed
that he was dead, for courts of justice do not allow the con-
sideration of possibilities to outweigh a case of strong prob-
ability, but adopt and act upon those presumptions which
seem most in accordance with the ordinary and usual course
of events. Presumption founded in a reasonable probabil-
ity must prevail against mere posibilities, for were it other-
wise the conclusion could never be arrived at that a man
was dead, until the natural limit of human life had been
reached. Suggestions quite as well entitled to considera-
tion as those now presented to the court have been offered
in previous cases ;^ but were not allowed to prevail
against the presumption which was deemed the proper and
reasonable one under the circumstances. Seventeen months
liave gone Ly since the defendant departed upon a voyage,
the ordinary limit of which is four months, and nothing
having been since heard of the vessel or of those who were
on her, the presumption must be that she is lost, and that
the defendant and those on board have perished. A greater
length of time would strengthen the probability, but suffici-
ent has elapsed to warrant the court in adopting and acting
upon that presumption."

In case IV. it was said: " If a tenant for life remove
beyond sea or absent himself in this State or elsewhere, for
seven j'ears together, he is presumed to be dead. That is a
conclusion founded upon mere absence and not being heard
of for that time without reference to other circumstances.
Other cases are left to depend on the various facts which
may be connected with them. A vessel when absent double
tlie longest time of a voyage may be presumed to be lost;
and it follows as a consequence that it w^ill also be inferred

1 SeeTwemlow v. Oswin/i Cami). 85; Green v. Brown, 2 Strange, irj9

RULE 50.] THE ruEsu.Mrriox of death.

229

that all perished with her, if none of the passengers or
crew are afterwards heard of. In October of last year we
were shocked at the news of the loss of the Arctic and most
of her crew and passengers. Still hopes were reasonably
entertained that some individuals might have been picked up
by vessels going to Europe, and until abundant opportun-
ity had passed to hear from all such vessels this hope was
properly indulged; and the legal inference might have been
until that time was passed that any individual not known to
have perished was still alive. But when that last anchor cf
hope was gone, thenthe conclusion was that those not hear!
from had perished — not when hope was last given up —
but at the time when from all circumstances it was most
probable that they had perished, and would carry us back to
the time when the ill-fated vessel and passengers and crew
sank together. Thus in earthly as in heavenly things, things
invisible to the human eye may be clearly seen, being under-
stood by the things that are known. * la this case nearly
the same time has elapsed since the Albany left her port
destined for this city, and that is the last that has been
heard of her, or of any of her crew. The lapse of time
makes the death of all on board of her as certain as any thing
not seen can be, and throws light on the question, when
did that destruction occur? The reasonable answer is, at
some time within the period usually assigned as the longest
for such a voyage ; and it might be from the circumstances
that it should be considered as some time while in her ordi-
nary course she would still be in the stormy Gulf of Mex-
ico. Either way it must have occurred before the judgment
in this case."

I. On Noveraber 15, 1857, G. S. sailed from Barcelona to Constanti-
nople, the average duration of the voyage being thirty days. The vessel
had never arrived at her destination, nor had anything been heard of her
or the crew. No inquiries had however been made at Barcelona. There
is no presumption that on November 15, 1858, G. S. was dead.^

1 Re Smyth, 28 L. J. (P. AM.) 1 (1S5S^

230 PRKSUMPTIVE EVIDENCE. [UULE 51.

II. On October 20, 1858, B. sailed in command of a vessel from Deme-
rara to Loudon. Nothing was afterward heard of the vessel or crew.
No inquiries had been made at Demerara. There is uo presumption in
March, 1850, that B. was dcad.^

In case I., Creswell, J., said: *' I do not find in the affi-
davits an}^ statement that inquiries have been made at Bar-
celona or elsewhere about the crew. The affidavits only
state that neither the vessel, G. S., nor any of the crew
have been heard of. I should undoubtedly presume that
the vessel has been lost, but it does not follow that the
crew, or some of them, may not have been saved. The case
had better stand over until you have written to the agent
of the ship at Barcelona and ascertained whether any of
the crew have survived."

In case II., the same judge said : '* I think probably the
vessel is lost, but it does not appear that any inquiries have
been made at Demerara as to whether any of the crew
have arrived there or have been heard of."

RULE 51. — Tliat at some time within tliat period he
has encountered a *' specific peril," which incUides
not the ordinary dangers of travel or navigation'^
(A), but some unusual or extraordinary danger (B).

Ilhistrations.

I. A. died in 1797. In 1791, J. sailed from New York to Europe, and
was not subsequently heard from. The question is whether J. sur-
vived A. The judge instructs the jury that taking into consideration
the hazards of the sea, they may presume that J. died within seven years
irom the time he sailed from New York. This is error. ^

II. In September, 1828, S. sailed as one of the crew of a schooner
from Portsmouth, N. II., to the South seas on a sealing voyage. One

1 Re Bishop, 1 Sw. & Tr. 303 (1859).

2 Eagle's Case, 3 Abb. (Pr.) 220 (18.56). "The ordinary perils of navigation are
undoubtedly general and not special perils." Lancaster v. Washington Life In.*.
Co., ryi Mo. 127 (1876) ; Lewis v. Morley, 4 Dev. & IJ. (L.) 323; 34 Am. Dec. 379 (1839) ;
Miller v. IJeates, 3 S. &!'. 490; 8 Am. Dec. 6.')8 (1817).

« Burr V. Sim, 4 AVheat. 150; 33 Am. Dec. 50 (183S).

KL'LE Ol.] TIIK niESUMl'TION OF DEATH. 231

Icttor was received from him dated April, l'^i",t, but neither 8. nor the
vessel were ever heard of again. There is no presumptiou that S. was
not alive iu September, 1831.1

III. C. sailed from Boston in 182(5 for the West Indies, since which
time he was not hcanl of. He left money in the hands of M., who iu
April, 1828, loaned it to J. J. pleaded tiiat C. was dead at tiie time the
loan was made. Held, that this could not be prusumed from his sailing
on the voyage and being unheard of.*

IV. S. left the Sandwich Islands in a bark for Manda, May 2, 1855.
The Ijarii and those on board wore not subsequently seen or heard of.
There was no presumption in September, 1S5G, that S. was dead.'

In case I. it was said: " The circumstance relied on is
the departure of the individual by sea; but the perils of
the sea are general , not specific ; and they are not present
but contingent. They are such as may or may not occur;
but to accelerate the presumption from time, or more prop-
erly to turn it from an artificial into a natural one, it is nec-
essary to bring the person within the range of a particular
and an immediate danger — not such as is contingently inci-
dent, in some degree, to every mode of conveyance. A
natural presumption arises only from a violent probability,
because it is a conclusion drawn by experience from the
usual current of things ; but no violent probability of death
arises from a peril, which though possible, is remote. All
the examples put by the judge himself are those of special
perils which bear directly on the person with greater or less
probability of its destruction in proportion to their urgency ;
and such was the nature of the probability in Watson v.
King. Now there is no mode of conveyance which has not
its perils ; and if the mere departure of a person not heard
of during the period of legal presumption, were enough to
warrant a natural presumption of his death within a more
contracted one, the legal presumption, stripped of its defi-
ciency to dispose of the uncertainty it was introduced to
remedy, would be deprived of the greater part of its value.

1 Smith V. KnowUon, 11 X. H. 19-2 (1S40).
= Xewnuin r. Jenkins, 10 Pick. 515 (1*^0).
3 AshOury v. Sauuders, S Gal. 62 (1S57).

232 PRESUMFTIVE EVIDKNCE. [rULE 51.

y\c arc of opinion, therefore, that though the exceptions to
other parts of the charge are not legitimate subjects of
revision here, the direction that there was evidence from
which the jury might infer the death to have been at a time
short of the period of legal presumption was erroneous."
In case II., the court said, that they were not aware of
any authority upon which the dangers of a sealing voyage
would authorize the court to draw a conclusion of death, at
the expiration of two years, as to a party who had embarked
on such a voyage.

B.

I. J. was the captain of a schooner named The Edmondson, which
sailed September i, 1854, for a port in South America. Neither vessel
nor crew were subsequently heard of. A violent storm prevailed along
the coast in that 3-ear. The question arises whether J. was alive in Sep-
tember, 1857. The presumption is that he was dead.^

II. M. left New York for Asia in 1840. In 1841 he resided in a town
in Asia which was visited by an epidemic. He was not heard of subse-
quently to 1840. His death may be presumed to have occurred prior
to 1847.2

III. A passenger on a vessel, in a weak state of health, disappeared
from the vessel while in the middle of the lake on a cold night. The pre-
sumption is that he had either by accident or design fallen into the lake
and been drowned. ^

In case I. it was said: "The rule that the presumption
of the continuance of life ceases when the person has been
absent and has not been heard of for a period of seven
years, it is argued, is a legal presumption and can not aid
the defense, because the period limited to sustain it has not
expired. If the presumption of death arising from the
lapse of time be a legal intendment then the inference is
certain, and as a rule of law would be obligatory on the
jury; but such a presumption is rebuttable — p'e.§?«?2^9<'eo
legis tanlum, and may be disproved, either by direct or cir-

1 Gibhes v. Vincent, 11 Rich. (L.) 323 (1858) ; Learned v. Corley, 43 Miss. 709 (1870) ;
and see lie Xorris, 1 Sw. & Tr. 6 (1858) ; Watson v. King, 1 Stark. 121 (1815).

2 See Eagle's Case, % Abb. (Pr.) 218 (183G).

3 Lancaster v. Washington Life lus. Co., 62 Mo. 127 (1876).

RULE 52.] TIIL: PRESUMmON OF DEATH. 233

cum.stantiiil evidence, the effect of which the jury and not
court must determine. It is not, however, from the pre-
sumption arising alone from the length of time since John-
son has been heard of that his death is inferred, ])ut from
the j)revalence of a violent storm on the track of his vessel
about the time he sailed, and that neither The Edraondson,
he nor his crew have since been heard of. The conclusion
of his death is inferred from a cause adequate to produce
it, coupled with the fact that we have no tidings of him
since."

RULE 52. — That his habits, character, domestic rela-
tions (A) or necessities (B) would have made it cer-
tain that if alive within that period he would have
returned to or communicated with his residence, home
or domicil.

Illustrations.

A.

I. A. left home for a city in an adjoininj; State on business, arrived
tliere in safety, ami Avaa seen by an acquaintance on the street about
tliree p. M. of the day lie arrived. He was never subsequently seen or
heard of. It is shown that his character, habits, and domestic relations
were unblemished and undisturbed. The presumption arises that his
absence is caused by death. ^

In case I. it was said: "Any facts or circumstances
relating to the character, habits, affections, attachments,
prosperity, and objects in life which usually control the con-
duct of men and are the motives of their actions, are com-
petent evidence from which may bo inferred the death of
one absent or unheard from, whatever has been the dura-
tion of such absence. A rule excluding such evidence would
ignore the motives which prompt human actions and forbid

1 Tisdale v. Connecticut Mntu.al Ins. Co., 26 la. 170 (1S68) ; ^8 Id. 12 (1870) ; Garden
r. Garden, 2 Houst. (Del.) 574 (18G3). In 1S.")6 M. disajipeared from liome. In an
action brought in 1SG4, it was proved that Hr. had not since been heard of. It was
al:^o proved that M. before Ills disappearance had declared his intention of coniniit-
tingr snicide. Ileld, tliat the presumption was proper that his death occurred about
the time of his disappearance.

23-4 PKESUMPTIAE EVIDENCE. [llULE 52.

inquiry into them in order to explain the conduct of men.
The true doctrine may be readily illustrated, thus : An
honored and upright citizen who through a long life has
enjoyed the fullest confidence of all who knew him — pros-
perous in business and successful in the accumulation of
wealth; rich in the affection of wife and children and
attached to their society; contented in the enjoyment of his
possessions, fond of the associations of his friends, and
havin«- that love of country which all good men possess —
with no habits or affections contrary to these traits of char-
acter— journeys from his home to a distant city, and is
never afterward heard of. Must seven years pass, or must
it be shown that he was last seen or heard of in peril before
his death can be presumed? No greater wrong could be
done to the character of the man than to account for his
absence, even after the lapse of a few short months, upon
the o-round of a wanton abandonment of family and friends.
He could have lived a good and useful life to but little pur-
pose if those who knew him could even entertain such a
suspicion. The reasons that the evidence above mentioned
raise a presumption of death are obvious ; absence from
any other cause, being without motive, and inconsistent
with the very nature of the person is improbable. It is
suo-o-ested that such absence may be on account of insanity.
That may be possible, but as death under such circum-
stances is more probable than insanity in the absence of
evidence thereof, the law raises the presumption of death.
Evidence which would point toward insanity as the cause of
such absence would, of course, be proper for the considera-
tion of the jury, from which its probability might be deter-
mined. The competency of evidence of the character above
indicated, from which the fact of the death of an absent
person may be found within the period of seven years is
well sustained by authority."

B.

I. B., a man of drunken habits, was entitled to dividends on stock pay-
able iu April and October. These were his chief maiutenauce, which he

RULE 52.] THE rHE.sUMPTIOX OF DEATH. 235

generally squandered la dissipation as soon as received, lie appli.'d for
and received his dividends in April, 18(J0, and was last seen in August of
the same year, very sick. He did not apply in October, and was nut sub-
secjucnlly seen or beard of. The question was, in ISOO, whether he had
died before November, 18G0. The presumption is that he had.^

II. In March 25, 18G6, S. left her home and was never heard of again.
She depended on an income payable in quarterly installments. She did
not appear to claim the amount due in June, ISGG. In a proceeding in
1875 the presumption is that she was dead after June, 18CG.'^

III. In May, 1872, J., who was then sixty-six years old, and who was
dependent for support upon the income derived under a will, left his
house and was never subsequently heard of. A few days previously he
had called upon the executor for the money, receiving half a year's
income. He was suffering at the time from an incurable disease. The
presumption is that he died during the fall of 1872.'

In casG I. it was said: "I quite adliere to the general
rule laid down in Doe v. JSTepean and many other cases,
that where a person has not been heard of for seven years
the onus prohandi of showing that he died at any particular
period within the seven years lies upon the person settino-
up such earlier death. In the case of Re Henderson's
2 rusts, ^ which has been referred to, the master of the rolls
came to the conchusion that the fact that the person pre-
sumed to be dead had not applied for a half-yearly payment
of an annuity for which he had hitherto regularly applied,
and on which he chiefly depended for his maintenance, was
sufiicient to lead to the presumption that he died before such
payment became due ; and that seems to me to be a sound
conclusion. Applying the same principle to the present
case, B, was of drunken habits, and when last seen was in
so emaciated a state that his death might have been expected
at anytime. IIow can his never applying for his October
dividends be accounted for except on the presumption that
he was dead? With regard to the suggestion that he may
have gone to America, it appears that he had no means, and

Sheldon v. Ferris, 45 Barb. 128 (1865).

2 Kc lieiu-^uey, L. K. 7 Eq. 4'J8 (ISG'J).

3 llifkmaa v. Upsall.i Cli. Div. U7 (1ST6) ; llickmau r. Upsall, 2 W. 019 (ISTG) ;
Hickiuan v. Upsall, L. 11. 20 Eq. 139 (1875),

* Ke Ackermun, 3 liedf,521 (1877).

236 PRESUMPTIVE EVIDENCE. [kULE 52.

it is not probable that he would have done so without com-
municating with his relatives, with whom, notwithstanding
his habits, he was on affectionate terms. I therefore come
to the conclusion on the facts of this case that B., having
made no application for the October dividend, must be pre-
sumed to have been then dead."

In case II. James, L. J., said: "The vice-chancellor
was of opinion that S. must now be presumed to have died
soon after June, 1866, but that it would have been impos-
sible to make such a presumption till after the expiration
of seven years from the time when she was last heard of;
that is to say, that the circumstance of her going away and
not appearing to receive her income in June, 1866, was not
in itself sufficient to justify the petitioners in acting on the
presumption of her death so as to enable them at that time
to apply to be let into possession of the property ; but now
taking the circumstances under which she disappeared
together with the presumption which has arisen at the end
of seven years, he has come to the conclusion from these
circumstances not only that she is dead, but that she died
soon after June, 1866. I think he was right in that way of
dealing with that part of the question. And Brett, J.,
added : " Our decision depends upon the question when S.
died. The fact of her not appearing to receive her income
was not sufficient evidence of her death; it was not so after
the first quarter day ; it was not so after the second quarter
day. In truth there was no presumption until she had dis-
appeared for seven years ; but after seven years having got
the fact that she was dead, you have a right to look back
and inquire into all the circumstances and ascertain when
she died. Suppose a person intending to return home at
ten o'clock at night does not appear, there is no presump-
tion that he is dead. But if, after a week he is found with
his skull broken in a wood, you can then conclude that he
was killed before ten o'clock on the night on which he dis-
appeared. So in the present case I think the vice-chancel-
lor was right in concluding that this lady died at the time
at which he says she died."

KULE 53.] THE PRESUMPTION OF DEATH. 237

In case III. it was said that his entire dependence upon
the income, his reguhir and frequent calls for the same
before his departure, and liis faihire to call thereafter, all
combined to justify the presunijjtion.

IIULE 53. — But the presumption of death at the
expiration of seven years from heing last heard of,
docs not arise where it is improhahle that the ahscntee,
even if alive, would or could have hcen heard of at,
or would or could have commiuiicated with, his resi-
dence, home or domicil (A), or where in other judicial
liroceedings the ahsentee is recorded as havinjj hcen
alive suhsequeutlj' to the end of the seven years (li)'

Illustrations.

A.

I. Ill 1829 L. left her family in England and went to Paris ■where she
took a situation as governess. She continued to correspond with her
relatives. In 1835 she wrote to her sister from Paris saying that she was
about to accept another situation, and stating that she had become a
Catholic. On receipt of this letter her sister replied in a letter or remon-
strance reproaching her for her abandonment of the Protestant religion.
Ko reply Avas received to this letter, and she was not subsequently heard
of. There is no presumption that L. died in 1842.1

II. A girl of sixteen leaves her father's house; later (August 1, 1814)
she is in a seaport town, intending to go abroad. She is not subse-
quently heard of. There is no presumption that in 1821 she is dead.*

1 Bowen v. Henderson, 2 Sim. & G. 360 (lS54h
In McMahon v. McElroy, Ir. Kep. 5 Eq. 1 (1S69), an Irish case, it was said:
"Tlie oircumstances of the present case are not sucli as to render it safe to make
that presumption at present. Ilujrh Morgan left Ireland for America some lime
before llie year 1S59; resided there for some years; married there; came back to
Ireland with his wife in I85;i for a temporary imrpose only ; he sold all his prop-
erly in Ireland, and after a few months, returned to America whither liis wife and
son followed him. It is contended, hnwevcr, that because ho has not since been
heard of by his sister, the only member of his family who remains in Ireland, I am
therefore, to presume that he is dead. But suppose that an alien comes into this
country and stays for a few months, or that a person who is not an alien but has his
residence abroad, comes here and stays for a little time, and then leaves, having —
toputnn extreme case — no relatives here, and is not heard of for seven years, is the
presumption, therefore, to be made of his death? I do not think the rule would
apply to such cases."

« Watson V. England, USim. 2S (1811).

238 PREsmiPTivE EVIDENCE. [rule 53.

III. A. was transported from England to New South Wales in 1838 for
seven years for a crime. He last wrote to his family on board ship in
that year. The records showed that he served his sentence. There is
no presumption that he was dead in the year 1850.^

IV. S. died in August 1858. W., his father, left England for Australia
in 1S49, from which country he wrote to his wife until 1854, when he
ceased to write. In his last letter he said: " I have made up my mind
should I reach England in safety, not to know, see or have any communi-
cation or connection whatever with any one whom I formerly knew."
TV. was never subsequeutly heard of. There is no presumption that he
died before S.^

V. A. sailor leaves his ship in a foreign country in 1850, and is not
afterward heard of. It is proved that his intention was to desert.
There is no presumption that he died in 1857.'

In case I. it was said tiiat the principle on which the
presumption that an absent person not heard from for
seven years is dead is based is that if he were living he
would probably have communicated with some of his friends
and relatives. This is a conclusion which courts draw from
the probabilities of the case. " It is quite clear, therefore,
that when no such probability exists the presumption can
not arise. In this case all the circumstances tend to show
that after what had taken place between L, and her friends
it was extremely improbable she would have entered into
further communication with them. She had abandoned her
religion, and her friends wrote to her a letter of remon-
strance and reproach for so doing. The reproaches were
not calculated to encourage further communications. I
think this circumstance, taken in connection with the rather
eccentric course of life which it appears from her letters
she pursued, render it improbable that she would have fur-
ther communication Avith her fi'iends. If I am right in this
view, it follows that the i)resumption of her death does not
arise from the absence of information or of communication
when that absence is natural, even if the lady were still
alive."

1 Milcham's Trust, lo Beav. ."jOT (1852).

- lie Smith, 21 L. J. (P. & M.) 182 (1SG2).

3 Lakin v. Lakin, 34 Beav. 443 (18C5) ; sec Dowley v. Winficld, 14 Sim. 277 (1844).

RULE 53,] THE PRESUMPTION OF DEATH. 239

In case II. Shadwell, V. C, said: "Hero a girl about
sixteen or seventeen years of age, whose father was farmer,
chose, for some reason which does not appear, to leave her
father's house, and to go no one knows whither. But it
seems that in August, 1814, she was at Portsmouth, and
that she then intended to go al)road. Therefore it is but
reasonable to presume that all along she iiad been conceal-
ing herself, and that she never intended to return home.
The mere fact of her not having been heard of since 1814
affords no inference of her death; for the circumstances of
the case make it very probable that she "svould never be
heard of again by her relations. How can I presume that
she died in 1821 from a fact which is quite consistent with
her being alive at that time? "

In case IV. it was said ; " The evidence is not sufficient to
warrant the presumption that W. died before his son.
Some expressions used by him in the last letter to his wife
would lead to the conclusion that he mio;ht have reasons for
not airain communicatiu": with her."

B.

"■ I. F. was the daughter of G., who died in 1800. In 1788 F. removed
from the State, and was not subsequently heard of. In 1825 an adminis-
tration account was prosecuted and confirmed in which a claim was made
and allowed for the " use of F., a daughter of G." This is sulhcient to
rebut the presumotion that G. survived F.^

II. In case I. a petition filed in 1805 by a son of G. stated that G. had
left surviving him twelve children naming F. among them. The return
of the sheriff stated that "the parties were severally named." This is
also sufficient to rebut the presumption thatG. survived F.^

III. The grant of letters of administration raises a presumption of the
death of the party .^

1 Kecch r. Rinehardt, 10 Pa. St. 20 (1S49).

' Lancaster r. Wasliington, Life Ins. Co., 0.2 Mo. 121 (l!*TG) ; Jenkins r. Pcckin-
pi\ugh,40 Ind. 133 (1872); French r. Frazicr, 7 J.J. Marsh. 431 (1S32) ; Peterkm r.
Inloes,4 Md. 175 (1853).

CHAPTEE XI.

THE PRESUMPTION OF SURYn^ORSHIP.

RUIjE 54. — There is no presumption as to the order in
which two or more persons died, who are shown to
have perished in the same accident, shipwreck or bat-
tle. The law regards them as having died at the
same instant.

The common law (unlike the civil law in this respect
which answers the questions arising out of the death of
several persons in a common calamity by recourse to a
number of fixed presumptions based on the age, sex, and
strength of the parties), does not attempt to ascertain, in
the absence of any evidence on which to go, the survivor
of a common catastrophe. Strictly it may be said, that the
common law presumes neither that one survived nor that all
perished at the same moment. But by leaving the matter
as one unascertainable, "the practical consequence," as
has been said, "is nearly the same as if the law presumed
all to have perished at the same moment. It is in fact
exactly the same. Where two persons (whether of the
same or different ages, sexes or physical conditions) perish
in an accident, shipwreck, or battle, and there is no evidence
to show which one of the several survived, the law will not
raise any presumption from the fact that one was younger
cr stronger, or of the more hardy sex, that he survived
an older or a weaker or a less hardy victim. The party
alleging that one survived the other must prove it ;
the onus is on him who claims a right or title upon the

(240)

RULE Si.] THE PRESOIPTIOX OF SURVIVORSHIP. 241

theory of the survivorship of one to prove that fact
affirmatively."^

Illustrations.

I. II. and his wife, while in a railroad car together, are precipitated
through a bridge into a river. They are afterwards found dcaii, and no
proof of one surviving the other is presented. Neither transmits any
rights to the other, and the heirs of H. must take.'

II. A father and two children were lost in a shipwreck, there being no
evidence of survivorship. The next of kin of the children claimed. The
burden of showing that they survived their father being upon them, they
can not recover.'

III. A father seventy-three years old, and his daughter thirty-three
years old, being on board a steamship which was lost at sea, perished in
the same calamity, and nothing was shown which tended to prove that
one died before the other. The heirs of the daughter can take nothing
as coming to her from the father.*

IV. A. made a will, leaving some legacies and appointing his wife
residuary legatee; she died, leaving several children. A. married again,
and had no child. A., with his wife and all his children, afterward were
lost at sea. The will is not revoked.*

v. T. and his wife perished at sea in the same shipwreck, and there
was no evidence who survived. The question arose whether the relatives
of the husband or of the wife were entitled to the residue of his estate-
Eeld, that the former were.^

1 Mason v. Mason, 1 Merivale, 307 (1816) ; Wollaaton v. Berkeley, 2 Ch. Div. 213
(1876) ; Re Heu88,2 Salk.533; Re Wheeler, 37 L. J. (P. &M.) 40; Robinson v. Sallier,2
Woods C. C. 187 (1875). Contra Calvin r. Procurator-General, 1 Hagg. Ecc. 92 (1827) ;
and sec Durrant v. Friend. 5 D, G. & Sn. 345 (1852) ; Scutlon v. Patulli), L. li. 19 Eq.
375 (1875) ; R. v. Hay, 1 W. Black. 646. This was the celebrated case of General Stan-
wix, who, with his wife and daughter by a former marriage, perished at sea on a
voyage from Dublin to England. Mr. Fcarne composed two ingenious arguments,
one in favor of each of the claimants, which are printed in his posthumous works.
In Selleck v. Booth, 1 You. & Cull. C. C. 117, Vice-Chancellor Knight Bruce held that
a presumption of priority of death might arise from the comparative age, strength
and health of the parties. In this case two brothers perished in a 6hii)WTeck; one
was the master, the other the second mate of the vessel; and he ruled that the
former (the elder) would be presumed to have survived the latter, as being the most
experienced sailor. Mr. Taylor (Ev., vol. 1, sec. 160) says of this case that it "can
not be relied on as authority, since it Is opposed to a long current of decisions."

* Ke Hall, 12 Ch. L. N. 12, 68 (1879).

» Newell r. Nichols, 12 Hun, 604 (1878).

* Coyev. L,each, 8Metc.371 (1844).

» Wright V. Netherwood, 2 Salk. 592 (1743).

6 Taylor V. Deplock, 1 Phill. 261 (1815) ; Re Selwyn, 3 Hagg. Ere. 748 (1831). In
this case the court said: " Instances have occurred where, under similar circum-
stances, the question has been, which of the two survived? But in the absence of
clear evidence, it has generally been taken that both died in the same moment.''
Re Murray, 1 Curt. 596 (1837).
10

24:2 PRESU^imvE evidence. [rule 54.

YI. A husband and wife were lost with all on board of a packet in the
English channel. The next of kin of the husband claims certain pro-
perty as coming to him as the heir of his wife. There being no evidence
that the husband survived the wife, the application is refused.^

VTI. A husband and wife were swept by the same wave into the sea
and not afterwards seen. The court can not assume that either survived
'the other.*

VIII. "W. and his wife were killed at the massacre at Cawnpore on or
about the 27th of June, 1857. There was no evidence which perished
first. There is no presumption that either survived the other.'

IX. Two persons, husband and wife, made separate wills. In the
husband's will the property was given to the wife, " and in case my wife
shall die in my lifetime, then to W. W. in trust for the children on their
coming of age." In the wife's will (made under a power given her by
her deceased father, in default of the exercise of which' the property was
to go to relatives specifically named) property was given to her husband,
and " in case my husband should die in my lifetime," then to W. W. abso-
lutely. The husband and wife and two children perished at sea, being all
swept off the deck by one wave, and all disappearing together. There is
no presumption that the husband had survived the wife or the wife the
husband ; it is necessary that W. \V. should show affirmatively that one
or the other had survived, and in the absence of such proof the
property goes to the relatives specifically named in the will of the wife's
father, as there has been no will by the husband nor any appointment by
the wife.*

X. A mistress made a will, in which she left her housekeeper the
whole of her property. Mistress and housekeeper were murdered at
the same time, there being no evidence which one died first. The claim-
ants under the servant could not succeed.*

XI. "W., her husband and daughter sailed from New York to Europe in
March, 1841, in tlie steamship President. Before this she had procured a
policy of insurance on her life for the benefit of her daughter. Neither
the President nor any of its passengers were ever subsequently seen or
heard of. There is no presumption that the daughter survived her
mother.*

XII. A mother and an infant son are lost in a shipwreck. The pre-
sumption is that they died at the same time.'

1 Satterthwaite v. Powell, 1 Curt. 705 (1838).

» Underwood v. Wing, 4 DeG. M. & G. 657 (1855).

a Re Wainwright, 1 Sw. & Tr. 257 (1858) ; Re Ewarl, Id. 253 (1859).

* Wing r.Ungrave, 611. L. Cas. 183 (1860).

6 See Doe v. Nepean, 5 B. & C. 92 (1833).

« Moehring V. Mitchell, 1 Barb. Ch. 205 (1846).

1 Stinde v. Goodncli, 3 Redf. 87 (1877) ; Re Ridgway, 4 Id. 226 (ISSO).

KULE 54.] THE PRESUMrXION OF SURVIVOnSIIIP. 243

XIII. A. and B., husband and wife, are killed in the same casualty, o,
f/., the wrecking of a railroad train by the giving away of a bridge. The
presumption is that they died at the same time.^

XIV. A father with his two children perished in a shipwreck. There
is no presumption either that a particular one of the three survived the
other, or that they did not all perish at the same instant.*

In case III. it was said: " The case stands thus : S\iva-
nus Keith and hid daughter, Mrs. Coye, perished in the
same disaster. No fact is shown givin<j the least indication
that either party, from the nature of the accident or the
position of the parties, had any advantage over the other
for protecting life. Nothing is shown of their particular
capabilities arising from personal strength or vigor. Noth-
ing indeed is put into the case to control it in favor of
either besides age and sex ; and these are not decisive tests
in the present case. In truth, there is nothing to show that
either the father or the dauHitcr survived the other. The
evidence * * * fails to show that the estate of Sylva-
nus Keith ever vested in Caroline E. Coye, his daughter. To
effect this it was necessary that she should have survived her
father. We do not feel authorized to say that this fact is satis-
factorily established. For aught that appears in the present
aspect of the case they may both have perished together.
This being so, and no arbitrary prestrtiiption being author-
ized bylaw in such cases arising from age or sex, the conse-
quence is that those who seek to enforce their rights as heirs
at law of Caroline E. Coye must fail in establishing their
riijht to a distributive share in the estate of Svlvanus Keith.'

*' "With respect to the priority," said Sir William "Wynne
in case IV., " it has always appeared to me more fair and
reasonable in these unhappy cases to consider all the parties
as dj'ing at the same instant of time than to resort to any fan-
ciful supposition of survivorship on account of the degree of
robustness. * * * Therefore, taking into consideration

1 Kansas Pac. U. Co. r. Miller, 2 Cal. 443 (1S74) ; Russell v. Hallett, 23 Kas. 276
(ISSO).

2 Xewell f. Nichols, 75 N. Y. 78 (1S7S).

2-44 PRESUMPTIVE EVIDENCE. [rULE 54.

that there was no wife or child at his death, I pronounce for
the will."

In case V. Sir John NichoU said: *' There is no evidence
direct as to this point ; some inferences have been deduced.
It is stated that the two bodies were found together. This
tends to show that they were in the same situation at the
time of death. Upon the whole, I am not satisfied that
proof is adduced that the wife survived. Taking it to be
that both died together, the administration is due to the
representatives of the husband. I assume that both per-
ished in the same moment, and therefore I grant the admin-
istration to the representatives of the husband. I am not
deciding that the husband survived the wife."

In case \T[. the judge said: "The principle has been
frequently acted upon that where a party dies possessed of
property that the right to that property passes to his next
of kin, unless it be shown to have passed to another by sur-
vivorship. Here the next of kin of the husband claims the
property which was vested in his wife; that claim must be
made out ; it must be shown that the husband survived.
The property remains where it is found to be vested unless
there is evidence to show that it has been divested. The
parties in this case must be presumed to have died at the
same time, and therfe being nothing to show that the hus-
band survived his wife, the administration must pass to her
next of kin."

In case VII. Mr. Justice Wightman said: *'We think
there is no conclusion of law upon the subject; in point
of fact we think it unlikely that both did actually die at
the same moment of time, but there is no evidence to
show which of them was the survivor."

*' Where two persons," said Lord Chelmsford in case
IX., *' are at one and the same instant washed into the sea,
and disappear together, and are never seen any more, it is
not possible for any tribunal called upon judicially to deter-
mine the question of survivorship, to form any judgment
upon the subject which can be founded upon anything but

RULE 54.] THE rRESUiiraiOX OF SURVIVOKSIIIP. 245

mere conjecture derived from age, sex, constitution, or
strength of body or mind of each individual, and as our
law has not established any rules of presumption for these
rare and extraordinary occasions, the uncertainty in which
they are involved leaves no greater weight on one side or
the other to incline the balance of evidence either way.
If, therefore, it is necessary for W. W. to establish his
claim under the will of Mrs. U., that he should prove
that she survived her husband, he must altogether fail."

In case XIV. it was said : ♦' There is no legal presump-
tion ^ which courts are authorized to act upon that there
was a survivor, any more than that there was a particular
survivor. It is not claimed that the children died at the
same time. Indeed, it may be conceded that it is unlikely
that they ceased to breathe at precisely the same instant,
and as a physical fact it may perhaps be inferred that they
did not. But this does not come up to the standard of
proof. The rule is that the law will indulge in no pre-
sumption on the subject. It will not raise a presumption
by balancing probabilities, either that there was a survivor
or who he was. In this respect the common law differs
from the civil law. * * * It is regarded as a question
of fact to be proved, and evidence merely that two per-
sons perished by such a disaster is not deemed sufficient.
If there are other circumstances shown, tending to prove
survivorship, courts will then look at the whole case for
the purpose of determining the 'question; but if only the
fact of death b}^ a common disaster appears, they will not
undertake to solve it on account of the nature of the ques-
tion and its inherent uncertainty. It is not impossible for
two persons to die at the same time, and when exposed
to the same peril, under like circumstances. It is not, as
a question of probability, very unlikely to happen. At
most, the difference can only be a few seconds. The scene
passes at once beyond the vision of human penetration,

1 75 N. Y. S7.

246 PRESU3IPTIVE EVIDENCE. [rULE 56.

and it is as unbecoming as it is idle for judicial tribunals
to speculate or guess whether during the momentary life
struo^fi-le one or the other may not have ceased to gasp
first, especially when the transmission of the title of prop-
erty depends upon it ; and hence, in the absence of other
evidence, the fact is assumed to be unascertainable, and
property rights are disposed of as if death occurred at
the same time. This is done, not because the fact is
proved, or that there is any presumption to that effect, but
because there is no evidence and no presumption to the
contrary."

RULE 55. — But where the calamity, though common to
all, consists of a series of successive events, separated
from each other in point of time and character, and
each likely to produce death upon the several victims,
according to the degree of exposure to it, the differ-
ence in age, sex, or health may raise an inference of
survivorship.^

Illustratio7i.

I. C, his daughter H. and sonW., each between fifteen and sixteen years
old, perish in a shipwrecli. The ship struck a roclc, and for some hours
the passengers worlced to lighten her, and to reach places of safety.
The father was in very feeble health, and unable to reach the upper deck,
whicli was swept by the waves last, and which the children reached.
The presumption is that the father perished first.^

RTILE 56. — And the one of several in a common dan-
ger which proved fatal to all, who was last seen or
heard alive within the operation of the cause of death,
is presumed to have survived the others.

Illustrations.

I. C, his daughter IT. and son W. perished in a shipwreck. The ship,
after striking, was swept by the waves, and C, who was at the time on

1 See Coyer. Leach, 8 Mete. 371 (1344); Pell v. Ball, 1 Chceves (Eq.). S.C, 99
(1S40.)

2 See Smith v. Croom 7 Fla. 147 (1S57.)

RULE 55.] THE PRESUMmOX OF SURVIVORSHIP. 217

the lower deck, was washed off. Subsequently II. and W. were seen on
the upper deck. The presumptiou is that H. and W. survived their
father.i

II. B. and his wife perished on board a steamboat at sea by the
explosion of one of the boilers, which shattered the vessel and caused it
to fall to pieces and sinlc in about half an hour. Mrs. B. was seen and
heard calling for her husbaud after the disaster, but he was not heard to
answer, nor was he seen at any time after the explosion. The presump-
tion is that the wife survived the husband.'

III. U., his wife and daughter C. were lost in a shipwreck. A wave
swept them from the deck simultaneously. U. and his wife were not
afterward seen, but C. was subsequently la.shed to a floating sjjar by a
sailor to whom she called. The presumption is that C. survived her
parents.'

IV. Father and son were hanged for a crime at the same time. Wit-
nesses oliserved the son move his legs after the father had apparently
become insensible. The presumption is that the son survived.*

1 See Smith v. Croom, 7 Fla. 80 (1857.)

a Pell V. Ball, 1 Cheves (Eq.) S. C. 09 (1840.)

« Underwood v. AVing, 4 Do G. M- & G. 633 (1854.)

* Broughlon V. Randal, Cro. £liz. 503.

CHAPTER XII.

THE PRESmiPTION OF IDENTITY.

RULE 67. — Identity of name raises a presumption
of identity of person, where there is similarity of res-
idence (a) or trade (b) op circumstances (c) or where
the name is an unusual one (I>) ; but aliter where
the name is a common one and there are several per-
sons known of the same name and of the same place
(E).

As has been said, it is fair and legal to presume that the
same name identifies the same person until the contrary
appears ; for names are used for the very purpose of iden-
tifying the individuals to whom they are attached.^

In dates V. Loftus,^ two certificates of land, one prior in
date to the other, had been granted to one Isaac Larue,
and the court held that they would presume that both had
been granted to the same person ; that the Isaac Larue in
the second grant was the same person as in the first. Mills,
J., in making this ruling used the following apt language:
" It has been truly observed at the bar that the appellee
has not ventured to deny that Isaac Larue, to whom the
first certificate was granted, is the same person who
obtained the last, and although there might have been more
of the same name it does not necessarily follow that one of

1 Gates V. Loftus, 3 A. K. Marsh. 202 (1820) ; Hamshaw v. Kline. 57 Pa. St. 397
(1868); Atchison v. McCulloch, 5 Watts, 13 (1836); Bogue v. Bigelow, 29 Vt. 179
(1857) ; Phillips v. Evans, 04 Mo. 17 (187C) ; State v. Moore, 61 Id. 279 (1S75.) ; Gilt v.
Watson, 18 Id. 274 (1853) ; Flournoy, v. Warden, 17 Id. 435; Drown v. Mctz, 33 HI. 339
(1864) ; Balbcc v. Donaldson, 2 Grant's Gas. 400 (IS-M) ; Brotherline v. Hammond, 69
Pa. St. 128 (1371) ; Hunt v. Stewart, 7 Ala. 527 (1845) ; Douglass v. Dakin, 46 Cal. 49
(1873); Trimhle v. Brichta, 10 La. Ann. 778 (1855); Givens v. Tidmore, 8 Ala. 745
(1845) ; Gamphell v. Wallace 46 Mich, 320 (IbSl).

2 3 A. K. Marsh. 302 (1820).

( 248 )

RULE 57.] THE PRESUMPTIOX OF IDENTITY. 249

these others obtained the first certificate. But we have
looked into the testimony and we find no proof of any but
one Isaac Larue in the county, or indeed elsewhere, at the
date of the certificate, so that we must presume that ho is
the person who obtained the first certificate as well as the
last, unless we should first presume the existence of another,
and then that ho was the person who obtained the first cer-
tificate. Such a presumption would be wholly unnatural and
without warrant." Again, in the Michigan case of Goodell
V. Hibbard,^ it was said by Graves, C. J : '* The deed from
Frank A. Goodell to the plaintiff in ejectment was executed
in the State prison, and just before the death of Betsey
Goodell, and no direct or express evidence was given to
identify him as the Frank A. Goodell of the class described
in the will as the minor children of Alexander Goodell,
deceased, and objection is made for the want of such proof.
We think, in the absence of circumstances to cast doubt
upon the fact of identity, the identity of name was enough
to raise a presumption of identity of person. The general
rule is too obvious and well settled to justify the citation of
authorities, and no circumstance ap]:)ears to affect the
operation of this rule, unless the fact that the grantor was
in the State prison should bo so considered, and we see
nothing in that, standing b}' itself, which should have any
force upon the point." So in a recent Texas case it was
said: <' Similarity of name is said to be some evidence of
identity. It can not be questioned that this alone is ordi-
naril}^ suflScient evidence of identity of a purchaser in a
chain of conveyance as the subsequent vendor. Although
this case can not be said to come fully within this rule, and
it would have been more satisfactory if the marriage of
L3'man Tarbox and Jane Carroll had been proved, or that
Jane Carroll, to whom the land was conveyed by Lyman
Tarbox and Jane M. Tarbox, who subsequently joined him
in the couve3'auce of it to the appellee, was the same

1 32 Mich. 55 (1875).

250 PEESUMPTIVE EVIDENCE. [rULE 57.

person ; jet we think the partial similarity of name, the pos-
ession of the original title papers, etc., sufficient to estab-
lish appellee's chain of title." And Lord Ellenborough
in an early case said : *' The question being whether in an
action at law an examined copy of the plaintiff 's answer to
a bill of discovery in chancery could be read, I must
have some evidence of the identity of the parties. But
when it is established that the bill in equity was filed by
the now defendant against the now plaintiff, I will presume
that the answer appearing on the file of the court of
chancery was put in by the latter, and I shall hold the
examined copy sufficient without the production of the
original." ^

Where it is proved that two parties have the same name
the burden is on a person suing one of them to show that
the party sued is the one who made the contract or is
otherwise liable. This maybe shown, however, by indirect
evidence, as that of the two the one sued is in business, and
the other not, or that the one sued has had former business
transactions with the plaintiff, while the other has had
none.^

Illustrations.

A.

I. The question ia, whether one Samuel Fry, of Plymouth Rock, has
written certain letters — he being the defendant in the case. A witness
testifies that he knows the handwriting of a Samuel Fry, of ^Plymouth
Rock, the only person of that name at the place. The presumption is
that he is the defendant.'

B.

I. S. sues for medicines and attendance furnished by him as a licensed
apothecary. Under the law he can not recover unless he is licensed. He
produces a license to a person of his name and proves that he practiced
as an apothecary. The presumption is that he is the person licensed.*

1 Hodgkinson v. Willis, 3 Camp. 401 (1813).

2 Jones V. Parker, 20 N. II. 31 (1849).

3 Harrington v. Fry, 1 Ky. & M. 00 (1824).

* Simpeon v. Dismore, 9 M. & W. 47 (1841).

EULE 57.] THE rRESUMPTlOX OF IDENTITY. 251

II. An action is brought against a pilot named Wm. Henderson, for neg-
ligently navij:;uting a vessel. A pilot named Henderson is in court and
answers his description. The presumption is that he is the defendant.^

III. In an action against Charles Lyon for goods sold to his intestate,
and a plea of plene administravit, the plaintiff, in order to show assets
offered a copy of a bill and answer by one Charles L3'on to a bill filed in
chancery against him in the character of an administrator. The presump-
tion is that they are the same persons and the evidence is admitted.''

*• "VVe find him," say.s Parke, B., in ca.se I., " acting as
an apothecary, prescribing and dispensing medicines to his
patients, and then producing a certificate or license for that
purpose in his name from the body empowered by law to
grant it. That is quite sufficient evidence of identity."

In case II. it was said : " The action was brought ajjainst
William Henderson, a pilot, and a person in court ans-wers
to the name of Henderson, and is proved to be a pilot, and
to have been the pilot on board the vessel in question. This
is evidence from which the jury might assume him to be the
defendant. But then the counsel objects that the statement
is not made under oath. As to that there are many things
which are incapable of strict legal proof. A man's name is
a mere matter of reputation ; that which is termed in Scotch
law the status of a man is matter of reputation, and if pre-
cise evidence of the relationship of one man to another or
other matters of that nature were always required, no fact
of that kind could ever be proved in practice. Here there
was evidence of the identity of the defendant although it was
not proved directly that the name of the party who answered
in couxt was William. There was evidence that he was a
pilot; that he was the pilot on board the vessel, and he
answered to the name of Henderson. I think that is suffi-
cient."

In case III. Lord Ellenborough said: <' It is said that the
evidence wants a further link to connect it with the defend-
ant, and that it ought to be shown that the Charles Lyon in

1 Smith f. Henderson, 9 M. & W. 81S (1S42).
» Ueuucll V. Lyon, 1 B. & Aid. 182 {,\sr,).

252 PRESUMPTIVE EVIDENCE. [rULE 57.

the answer was the present litigant. I do not know any
Tvay by what that circumstance can be supplied, but by the
description in the answer itself, which tallies in almost every
particular. Still, however, it may be shown that he is not
the same person. The question then is whether public con-
venience requires that the proof should be given by the
plaintiff or the defendant, and I rather think that the public
convenience is in favor of the admissibility of this proof,
giving the other party an opportunity of showing that he
was not the individual named in the answer. It should be
taken as proof that he is the person named in the answer
until the contrary be shown." And Bayley, J., said:
*' There is nothing to show two administrations, and it is
rather extraordinary to suppose that two persons of the
same name should sustain the same character. It is not to
be presumed that there are two persons, but the identity is
rather to be presumed, unless the plaintiff could have shown
the contrary." And Holroyd, J., added : " How does the
question stand? The person sued here is Charles Lyon,
sued as administrator of Mary Lyon, and the copy of the
answer shows that the bill was filed against Charles Lj'^on,
as administrator of Mary Lyon. There is therefore p-ima
facie evidence that the Chailes Lyon in that court and in
this are the same person, which is the only identity
wanted."

C.

I. A prisoner is indicted under the name of K. alias M. A record of
a previous conviction of one K. alias M. is produced. The presumption
is that they are the same person. ^

II. William J. Douglas is plaintiff in an action. The defendant sets
up a judgment obtained in another court against William J. Douglass.
The presumption is that they are the same.^

D.

I. An action is brought on a bill of exchange directed to " Charles
Banner Crawford, East India House," and accepted " C. B. Crawford."

1 state V. Kelsoe, 7C Mo. 50G (1882).

2 Douglas V. Dakin, 40 Cal. 49 (1873).

RULE 57.] THE PRESUMPTION OF IDENTITY. 253

A witness proves that the signature was that of a gentleman of that
name, formerly a clerk la the East India House, but he does not know
•whether that Mr. Crawford is the defendant here. The presumption is
that the two are the sanie.i

II. In an action against one William Leal Evans, for goods sold and
delivered, it appears that five years before, a person of that name liad
been a customer of plaintiff's and had written a letter acknowledging
the receipt of the goods. The witness who proves this does not know
Avhether the defendant who answered to the same name is the same per-
son. The presumption is that he is.*

III. An action is brought against Henry Thomas Ryde, as acceptor of
a bill of exchange. The cashier of the bank testifies that a person of
that name had kept cash at the bank where the bill was made payable,
and that the acceptance is in his handwriting. lie can not identify him
with the defendant of the same name. This is a sufficient prima facie
case.^

IV. Tlie question is whether the defendant was the Sir J. C. Anderson
who had signed a certain bill; a bank clerk testifies that it is in the
handwriting of a person who called himself Sir J. C. Anderson, and had
two years previous transacted certain business at the bank. The pre-
sumption is that they are the same.*

V. To an action on a note against Theodore Valney, the Statute of
Limitations is pleaded. The plaintiff's attorney testifies that he ad-
dressed a letter to the defendant through the post-office, and in response
a person of his name came to him, and promised to pay the debt. He
was not personally acquainted with the defendant. The presumption
is that the person who responded to the letter is the defendant.*

"Does the name go for nothing at all in any case? " asked
Denman, C. J., in the course of an argument.^ «♦ Suppose
the name of the defendant had been William Lemuel Gulli-
ver Evans, and a sale had been proved to a party so
named."

In case I. it was said by Abinger, C. B., <* I am of
opinion that the evidence was quite sufficient. Here the
bill is drawn upon by Charles Banner Crawford, and ad-
dressed to him at the India House. The evidence is that

1 Grecnshields v. Crawford, 9 M. ± W. 314 (1841).

a Sewell v. Evans, 4 Q. B. 626 (1743).

8 Roden v. Hyde, 4 Q. B. 626 (1843).

* Warren v. Anderson, 8 Scott, 384 (1839).

' Kelly r. Valney, 5 Penn. L. J. 300 (1854).

e Sewell v. Erane, 4 Q. B. 626 (1S43).

254 PRESUMPTIVE EVIDENCE. [rULE 57.

there is a person of the name of Charles Banner Crawford ;
that he once belonged to the India House, and that the
acceptance is in his handwriting. That is surely sufficient
evidence of identity,"

*'In cases," said Lord Denman, in case III., *' where no
particular circumstance tends to raise a que^stion as to the
party being the same, even identity of name is something
from which an inference may be draw^n. If the name were
only John Smith, which is of very frequent occurrence,
there might not be much ground for drawing the conclusion.
But Henry Thomas Rhydes are not so numerous, and from
that and the circumstances generally, there is every reason
to believe that the acceptor and the defendant are ident-
ical. « * * Lord Lyndhurst asks,^ ' why the onus of
proving a negative in these cases should be thrown upon the
defendant ; ' the answer is because the proof is so easy. He
might come into court and have the witness asked whether he
was the man."

" Human tribunals," it was said in case V., ** must
often proceed upon presumptions. There are many such
cases so frequent and familiar as to escape observation.
These presumptions are safe, for they are founded upon
experience which is the best interpreter as well as judge of
actions and events. * * * If the person who called on
Mr. A. was not the defendant, there was not merely a fraud,
a false personation, but the plaintiff must have procured it.
Identity is easily disproved by confronting the party with
the witness. * * • The name Theodore Valney is an
uncommon one, and the transaction recent."

E.

I. A note signed "Hugh Jones" is sued on. It appears that there
are several " Hugh Jones " at the phice where the note was signed,
and there is no evidence to show that the " Hugh Jones " wlio is sued
is the " Hugh Jones " who signed the note. The plaintiff is non-suited.^

1 Whitelock V. Mu?grove, 3 Tyrw. 543.

2 Jones V, Jones, 9 M. & W. 76 (1811).

RULE 58.] THE rnESUMPTION OF IDENTITY. 255

It was said by Williams, J., in a subsequent case,' that in
easel, it appeared that the name Hugh Jones in that par-
ticular part of Wales was so common as hardly to be a nam*,
and the remarks of Abinger, C. B., bears this out. *' The
argument of the plaintiff might be correct, if the case had
not introduced the existence of many Hugh Jones in the
neighborhood where the note was made."

RtTLE 58. — The fact that the family name and initials
are tlio same raises no presumption that the parties
are the same.

Illustrations.

I. A declaration on a promissory note describes it as made by Andrew
A. Louden. The note produced at the trial is signed A. A. Louden.
There is no presumption that the note produced is the one sued on.*

II. Henry V. Libhart brings an action on a judgment in favor of H.
V. Libhart. In the absence of any averment tliat he vs'as Ivnown by the
latter name or that it was rendered in his favor by that name, there is
no presumption ol his identity vpith the plaintiff in such judgment. ^

III. One Patrick O'Neil was the owner of a certain piece of land.
A deed is signed by P. P. O'Neil, There is no presumption that they
are the same persons.*

In case I. it was said: *' The plaintiff must produce a
note and show it to be jy^'inia facie the note of Andrew A.
Louden. Should he, upon the trial, produce a note signed
Andrew A. Louden, it would fill the allegation in his decla-
ration and make out the case. But suppose the plaintiff
produces a note signed Andrew A., will this be suiKcient to
entitle him to judgment? It may be the note of Andrew
A. Louden. * * « j^^j^ would it prima facie be the
note of Andrev/ A. Louden ? We think not. Suppose the
note produced to be signed Louden, or A. Louden, the same
question would arise. Or suppose it signed A. A. Louden,
does this prima facie indicate Andrew A. Louden? Why

1 Rodon V. Ryde, 4 Q. B. 625 (1843).
- Louden v. Walpole, 1 Ind. 321 (1S48).
« Bennett v. Libhart, '27 Mich. 480 (1873).
* Burford v. McCue, 63 Pa. St. 431 (1SC6).

256 PRESU5IPTIVE EVIDEXCE. [RULE 59.

rather than Abraham or Armstrong or Alexander A. Lou-
den?"

In case IT., it was said: *' Had Libhart sued upon a note
or other written contract made payable to H. V. Libhart,
the possession of the writing by him would have been some
evidence that he was the party mentioned therein. But
there is no room for a similar presumption in the case of
the record of a judgment upon which one man can bring
suit with the same facility as another, if he will make the
averment of identity with the party plaintiff. We have,
therefore, nothing in this case to support the judgment,
unless we are at liberty to assume as a legal presumption
that where the family name and initials are the same there
is identity of person. This is going farther than we think
is admissible."

RtTLE 59. — Where two persons of the same name oc-
cupy different positions or relations, the presumption
is that they are different persons.^

Illustrations.

I. It is objected that the judge presiding at the time an order was
made in a certain cause was cue of the counsel in the case at its com-
mencement. Their names are the same. There is no presumption that
they are one and the same person. ^

II. The deposition of Walter D. Scott is offered, but is objected to
on the ground that the defendant and one Walter D. Scott had once been
partners. There is no presumption that the witness and the defendant's
partner are the same person. ^

ni. A note is sued on in which the payer and the payee are of the
same name. The presumption is that they are different persons.*

rv. Two persons, A. and B., are petit jurors in a case. It is proved
that there are on the list of grand jurors serving at the same time two
persons of the same name. There is no presumption that A. and B.,
the grand jurors, are A. and B., the petit jurors.^

1 See Nicholas v. Lansdale, Litt. Sel. Cas. 21 (1805).
s Ellsworth V. Moore, 5 Iowa, 486 (1857).
s Cozzens v. Gillispic, 4 Mo. 82 (1835).
* CooptT r. Toston, 1 Duv. 92 (18(i3).
Wickerbham v. People, 2 lU. 128 (1834).

KULE Gl.] THE PRESUMPTION OF IDENTITY. 2j7

V. A certificate of sale of property for taxes is made to " Michael
Duudon," but the deed is made to " Patrick Michael Dundon, Jr." It
appears that there are two persons of the name of Dundon, one named
Michael, the other Patrick. The deed Is not admissible in evidence
without proof that the two names were intended for the same person. ^

"The court knows, judicially," it was said in case I.,
*'the judf^es in the different judicial districts in this State,
and will presume, in the absence of any showing to the con-
trary, that the courts of the District Court are held by
such judges, but we cannot know that the attorney, J. D.
Thompson, and the Honorable J. D. Thompson, judge of
the Thirteenth Judicial District, are one and the same per-
son."

RULE 60. — The initials preceding a surname are pre-
sumed to be the initials of a name and not the abbrevi-
ations of a title.

Illustrations.

I. It is proved that the Rev. Patrick O'Neil is the owner of a certain
piece of land. A deed is produced signed R. P. O'Neil. There is no
presumption that they are the same, for the " R " in the deed is presumed
to stand for another name, and not to be a contraction for Reverend.^

RtTLE 61. — Where an interest is claimed, mere identity
of name to the person entitled is insufficient.

I Ihcstrations.

I. It appears that one Timothy Mooers is entitled to an interest in an
estate. A person of that na-rae brings an action thcrof<)r. From the
identity of names alone it is held that there is no presumption that the
person bringing the suit is the one entitled.^

II. In an action of ejectment J. shows a patent to A. and establishes his
descent from a person of that name. The presumption is that J.'s ancestor
and A. are the same person.*

1 McMinn f. Whelan, 27 Cal. SOO (1868).

- Burford r. McCue. 53 Pa. St. 431 (1S6C). So In pleadinp where an initial is
used instead of the full name, it will be presumed to be an abbreviation, and uot a
different name. Lcc v. Mendel, 40 111 350 (1S66).

3 Mooers V. Bunker, 29 X. II. 431 (1S54).

* Jackson v. King, 5 Cow. 23" (1j Am. Dec. 468). (1825).
17

2j8 PRESU3IPTIVE EVIDENCE. [rULE G2.

*' The first thing to bo proved," it was said in case I.,
*' is that the plaintiff is seised of the share he claims of the
real estate. If his name is John Smith or John Jones, or
any of the common or frequently recurring names, it would
be at once apparent that to prove a John Smith to be enti-
tled is but one step to prove the plaintiff's title; the next
is to prove that he is the same person. In the nature of
things the same question must arise in every case. It is
not often a matter of controversy whether the identity of
t'he plaintiff is established, because the doubt, if any arises,
can generally be readily removed. But if the question is
made, a jury is not at liberty to presume that a person even
of so peculiar name as Timothy Mooers is the same per-
son as the man of the same name who is shown to be enti-
tled to a particular estate."

RULE 62. — Where father and son, or two persons of
different ages, hear the same name, that name when
used is presumed to indicate the father or the elder
of the two, as the case may be.

Illustrations.

I. An action is brought by Henry Sweeting, the younger, on a promis-
sory note payable to Henry Sweeting. It is proved that there are two
persons of this name — father and son. The presumption is that the note
is payable to the father.^

II. An indictment alleges that a woman named therein had committed
adultery Avith one Levi Wallace. It appears that there are a father and
son of that name. The presumption is that the father was intended, and
evidence of adultery with the son is inadmissible.^

III. A devise was made to John Cluer. The presumption is that it
was the father and not the sou of that name, who was intended to
take.'

1 Sweeting v. Fowler, 1 Stark. 106 (1815.) Fyffo v. Fyffe, lOG 111.646 (1883). In
Stebbing v. Spicer, 8 C. B. 827 (1*19), this case was followed, but it was held that the
presumption was rebutted by the sou's iudorsement of the note. And see Itiucaid
V. Howe, 10 Mass. 203 (1813).

2 State V. Vittum, 9 N. II. 519.

* Jones V. Newman, 1 W. Black. 60.

IIULEC2.] THE PRESUMrTION OF IDENTITY. 2j0

IV. A deed of land Tvas executed to Joshua Grauijer. There are two
persons of that name living at the time — father and son. The preaump-
tion is that the father was the grantee.'

v. There are two persons of the name of A. B. father and son. An
assignment of a land curtKicate is made to A. B. The presumption is
that tile father was intended.^

In an English casc^ jiulgracut had been obtained a^^ain.st
Joseph Jannain, the son of a person of the same name,
and fieri facias was issued against hira without further de-
scription, under which the goods of his father were sold. It
was hehl that the writ afforded no justification to the
sheriff. "It is undoubtedly true," said Tindal, C. J.,
" that if the father and son have the same name of bap-
tism and surname, and the name of baptism and surname
only bo stated in the writ without any addition thereto,
prima facie the son shall not be intended. But it is equally
true that if the action is brought against the son without
any addition, and such want of addition is not pleaded in
abatement, a judgment obtained in such action against the
son, and a writ of execution upon such judgment are good
against him by the name inserted in the writ. Although,
tlierefore the want of addition impovts priina fiacie that the
son is not intended, it is no more than a, prima facie intend-
ment, for the son may be the pei-son really intended by the
writ. The situation, therefore, of the sheriff, under such a
state of circumstances, seems to be the same as if he had
received a writ against a defendant described by the name
of J. S. in the writ, and there appeared at the time of exe-
cuting the writ to be two persons of the name of J. S. ; in
which case there can be no doubt but that the sheriff would
be liable, if, through inadvertency or mistake, he took the
person or the goods of the wrong J. S." In the New
Hampshire case, on the otlicr hand (case II.), it was held
that a crime being charged, the presumption was not rebut-

1 Stevens v. West, R .Jones (L.) 50 (1S,")S) ; Graves v. Colwell, 90 lU. 615 (1S:<.)

2 Browu V. Bcuight, 3 niackf. 30; 23 Am. Dec. S73 (1S32). Lcpiot r. Browne
1 Salk. 7.

3 Jarmaia v Cooper. C M. A S2S (1S43),

2 GO PRESUJiPTIVE EVIDENCE. [nULE 62

table. The woman was accused of adultery with Levi
Wallace, and there were two Levi Wallaces-:— father and
son. *' The question then is," said the court, "whether
the respondent is informed by this indictment that she is
accused of adultery with the individual to whom the evi-
dence related, or whether she is in fact informed by it that
she is accused of intercourse with Levi Wallace, the elder
There can be no doubt that evidence to prove that the
respondent had been guilty of adultery with Levi Wallace,
the elder, must have been admitted, if it had been offered
at the trial of this indictment. If evidence of adultery
with Levi Wallace, Junior, was rightfully admitted, it would
present a case where proof that the respondent had been
guilty of the offense with either of one of two individuals
might be offered under an indictment which charged an
offense with one only. That cases of this kind may occur
there is no doubt. Where there are two or more individu-
als of the same name residing in a town who have no usual
addition to designate one from the other, it may result from
the nature of the case. And perhaps the same may be true
where there is merely a territorial designation sometimes used
to distinguish different individuals of the same name, but
not used by either of them for that purpose.^ But where
there are two persons of the same name, father and son,
residin<x in the same town, and the latter uses a well known
addition to his name, as ' junior ' or * younger ' to designate
him from his father, and he is usually known by such des-
ignation, we are of an opinion that an indictment, in order
to allege any offense as committed with him or upon him,
should connect with his name the ordinary. addition which is
by himself and others used to distinguish him from his
father, and that in the absence of such addition, the indict-
ment must be understood to allege the offense to have been
committed with or upon the latter." But the same rule, it
seems, does not apply to mother and daughter.^

1 Coit V. Starkrveather, 8 Conn. 203.

s B. V. Tease, 3 J3. & Aid. 579 (1S20), and see 11. v. Bailey. 7 C. & P. 261 (1S35).

IIULE 03,] THE rUESUMPTIOX OF IDENTITY. 2G1

In case IV., though the parties were father and son, a
more extended principle was announced by the court in con-
formity with the rule as stated above. ♦' The rule," said
Battle, J., " may be laid down more broadly, that in all
cases where there are two persons having the same name,
whether they stand to each other in relation of father
and son or not, the elder is always presumed to be meant
when there is no addition to the name. The reason is, that
when one has a particular name, and afterwards there is a
younger person to whom the same name is given, the first
does not thereby cease to be known by that appellation, but
the latter must be distinguished from him by the addition of
* junior,' or perhaps in some other way."

RULE 63. — And the identity of tilings may be presumed
from circumstances.^

Illustrations.

I. A certain case is proved to have been on a certain day removed
from a justice's court to tlie Supremo court. A subsequent order of the
Supreme Court dismissing from its docket a cause having the same
title is introduced. The presumption is that it is the same cause. ^

II. A contract to convey " a house on Church Street " is dated at Bos-
ton. The presumption is that the house is situated in Boston.*

III. An action is brouglit on a note made by B. to C. The action is
barred by limitation, but C. relies on a new promise. The promise is
made in a letter in which B aclinowledges and undertakes to pay "his
debt." The presumption is that this refers to the debt sued on.*

1 Morris r. Landauer, 48 Iowa, 1?.i (1878); Byrd f. Fleming, 4 Bibb. 145 (1315} ;
Beatty v. Michon, 9 La. Ann. 103 (1854).
» Howard r. Rockwell, 1 Doug. (Mich.) 315 (1844).
8 Mead v. Parker, 115 Mass. 413 (1874).
« Coles V. Kelsey, 2 Tex. 541 ; 47 Am. Dec. 6G1 ; (1847).

CHAP TEE XIII.

THE PRESOIPTION OF INTENT.

RinLiB 64. — Where a person does an act, he is pre-
sumed in so doing to have intended that the nat-
ural (A) and legal (B) consequences of his act shall
result.^

Illustrations.

A.

I. W. wrote and published of II. that he had colluded with an insolv-
vent tenant in setting up a fictitious distress. In an action of libel
brought by H. against W. the judge leaves it to the jury to say whether
W. intended to injure II. by the publication. This is error because the
tendency of the libel being injurious to H., "W. is presumed to have
intended it to be so.

II. A baker is charged with delivering adulterated bread for the use of
a public asylum. It is proved that A. delivered the bread. The pre-
sumption is that he intended it to be eaten.'

III. B. is charged with setting fire to a building with intent to injure
the owner. It is proved that B. fired the building. The presumption
arises that he intended to injure the owner.*

IV. A debtor knowing himself to be insolvent, executes a bill of sale
and an assignment of his book accounts to one of his creditors. The pre-
sumption is that this was done with the intention of giving a preference
to such creditor. 5

V. A married man enters a house of prostitution and remains there
all night. The presumption is that he committed adultery while there.

1 state V. Hessenkamp, 17 Iowa, 25 (1864) ; State v. Presnell, 13 Ired. (L.) 105 (1851) ;
Hayes v. State, 58 Ga. 47 (1877) ; lloskiiis v. State, 11 Id. '.)2 (1852) ; Lawrence v. Stale,
68 Ga. 280 (1881). " Every man acting intelligently will be presumed to intend the
necessary consequences of bis acts." Holmes v. Holmes, etc., Blanufg. Co., 37
Conn. 278 (1870). But a party is not presumed to intend remote consequences of
his acts. Nicol v. Crittenden, 55 Ga. 41)7 (1875).

2 Ilairc V. Wilson, DB. & C. G43 (182!)) ; King v. Harvey, 3 D. & R. 464 (1823).

3 King V. Dixon, 3 M. & S. 12 (1814).
* R. V. Fanning, R. & R. 207 (1811).

6 Ecker V. McAllister. 45 Md. 200 (1876) ; Gardner v. Lewis, 7 Gall. 377 (1848).
« Evans V. Evans, 41 Cal. 103 (1871) ; Astley v. Aitley, 1 Utigg. Ecc. 720 (1S28).

(2(J2)

RULE Gi.] THE PRESOITTION OF INTENT. 203

VI. A wife who resided in Massachusetts goes to Maine and immedi-
ately applies for and obtains a divorce for causes not a grouml for
divorce in Massachusetts. The presumption arises that her purpose in
removing to Maine was to obtain a divorce.^

YII. A statute provides that certain conveyances made with intent to
give a preference to certain creditors shall be void. A. malces a convey-
ance whose provisions prefer certain creditors. The presumption is that
A. intended to give a preference. ^

"The judge, "said Tenterden,C. J.,incasel., " ought not
to have left it as a question to the jury whether the defendant
intended to injure the plaintiff, for every man must bo pre-
sumed to intend the natural and ordinary consequences of
hisownact." And Littledale, J.,added: <♦ If the tendency
of the publication was injurious to the plaintiff, then the law
will presume that the defendant, by publishing it, intended
to produce the injury which it was calculated to effect."

In case II. Lord Ellenborough said, that it was a univer-
sal principle that when a man is charged with doing an act,
of which the probable consequence may be highly injurious,
the intention is an inference of law resulting from the doing
the act, and here it was alleged that he delivered the loaves
for the use and supply of the children, which could only
mean for the children to eat, for otherwise they would not
be for their use and supply.

In case VH., Shaw, C. J., said: "But the statute pro-
vides that the acts which it prohibits must be done with an
intention to give a preference. The intent to prefer is
essential, but every person is to be presumed to intend the
natural and probable consequences of his own acts, and if
such acts do in fact as this do give a very large preference,
it is competent for the jury to infer the intent. It does not
rebut this intent to show that the debtor has also another
motive to the proceeding, namely, an expectation of pecu-
niary or other future benefit to himself by means of further
loans of money, and being enabled thereby to continue his
business."

1 Cliape r. Chase, G Gr.iy, LIT (IPSO).

» Deuuy v. Dana, 3 Gush. 100 (1&4S) ; Bcals v. Clark, 13 Gray, 13 (ISoO).

2G4 PKEsu^irxiYE EVIDE^XE. [rule G4.

B.

I. A., B., and C. sign a note " as trustees " of a church, it being repre-
sented to them that no individual liability could arise from their act.
But the law considers a note so signed as binding the signer personally.
The presumption is that A., B., and C. intended to bind themselves per-
sonally.^

II. A., Tvho holds two claims against B., gives him a release under seal
of one and a simple receipt of payment of the other. The presumption is
that A. intended that the former should be conclusive, and that the latter
should not. 2

III. A debtor makes a fraudulent preference by assignment of his
property. He makes also a " conveyance of his property for the benefit
of creditors." The law presumes that the intent of the conveyance was
to delay or defraud his creditors. ^

IV. A. forges the name of B. to a bill of exchange and negotiates it.
The presumption is that A. intended to defraud B., and his intention to
pay it when it became due is irrelevant.*

V. B. forges C.'s name to acheck on the bank of D. C. has no account
there. The presumption is that B. intended to defraud C.^

VI. A. was employed by B. to purchase stock toacertain amount. A.
pave B. a forged receipt for stock for that amount. The presumption is
that A. did this with the intention of defrauding B., and B.'s opinion that
he did not intend to defraud is irrelevant. ^

VII. C. is indicted for issuing a forged bank-note with intent to
defraud the bank. The note was issued by C. to a third person, and it
appeared that its execution was such as to render its spuriousness easily
detectable by the offlcers of the bank who must examine it before paying
it; but this an ordinary person would not discover. C. is presumed to
have intended to defraud the bank.'

VIII. A. sets lire to a building. The presumption is that he intended
to destroy it.^

IX. A. gives a promissory note to B. The presumption is that A. and
B. intended that the note should be paid in legal currency.'

X. A statute provides that the failure to pay over money by a public
officer shall be punishable ; a public officer is indicted for failing to turn

1 Mears v. Graham, 8 Blackf. 144 (1846) ; Burrit v. Dickson, 8 Cal. 113 (U57).

s Jones V. Ricketts, 7 Md. 108 (1^54).

« Ex parte Villars, L. R. 9 Ch. App. 443 (1874).

« R. V. Hill, 2 Moody, 30 (1S38).

6 R. V. Nash, 2 Den. C. C. 498 (18.')2).

« R. V. Bheppard, R. & R. ICO (1809).

' R. V. Mazagora, R. & R. 291 (1815).

8 People r. Orcutt, 1 Park. C. C. 252 (1851).

« Williams v. Boozemun, 18 La. Ann. 532 (1366).

IIL'LK 04.] THE PRESUirrriON- OF INTENT. 205

over a license fee collected by him. The presumption is that his failure
was willful and intentional.'

Ill case II. it was said: "When tlio law ascribes to one
iusti'ument a conclusive and to another a prima facie char-
acter, we must presume that parties using either intend it
to operate according to its legal effect. A release will dis-
charge a debt when a receipt will not. Persons may settle
in good faith under the impression that the amount paid is
all that is due. But it sometimes happens that mistakes
occur, and to enable parties to correct them the law has
declared that mere receipts are not conclusive."

In case III. Lord Chancellor Cairns said: "It is true
that under this, as under previous statutes of bankruptcy,
two acts are specified which if done by the bankrupt are
not only acts of bankruptcy, but are also, if followed by
bankruptcy, void. One is a conveyance or assignment
of the bankrupt's property for the benefit of creditors, and
the other is a conveyance or assignment fraudulent or by
way of fraudulent preference. It is to be observed as to
one of these acts, namely, a conveyance or assignment
by way of fraudulent preference, special provisions have
always been made in bankruptcy'- legislation, making such
a conveyance or assignment void by express enactment,
and reducing it accordingly; and as to the other, namely,
a conveyance in trust for all creditors, it has been held
from the earliest times of bankruptcy law, that a^ the
effect of such a conveyance must be to delay or defeat
creditors, the law will presume an intention to delay or
defeat creditors, and the conveyance would therefore be
invalid as against, and perhaps even without reference to
the policy of the bankruptcy laws.'*

"The recorder," said Maule, J., in case V., " seems to
have thought that in order to prove an intent to defraud,
there should have been some person defrauded or who
might possibly have been defrauded. But I do not think
that at all necessary. A man may have an intent to

1 state r. Ueatou, 77 N. C. 504 (1S77).

2G6 PREsmiPTivE EYiDExcE. [kule G5,

defraud and yet there may not be any person who could
be defrauded by his act. Suppose a person with a good
account at his bankers, and a friend with his knowledge
forces his name to a check, either to try his credit or
to imitate his handwriting, there would be no intent to
defraud, though there might be parties who might be
defrauded; but where another person has no account
at his bankers, but a man supposes that he has, and on
that supposition forges his name, there would be an intent
to defraud in that case, although no person could be de-
frauded."

In case X. it was said : *'As men do not generally violate
the criminal code, the law presumes every man innocent,
and this presumption of innocence is to be observed by the
jury in every case. But some men do violate the law, and
as they seldom do unlawful acts with innocent intentions,
the law therefore presumes every act in itself unlawful to
have been criminally intended until the contrary appears.
A familiar example is on the trial of a case of homicide.
Malice is presumed from the fact of killing, and the burden
of disproving the malice is thrown upon the accused. The
same principle pervades the law in civil as well as criminal
actions. Indeed, if this were not so the administration
of the criminal law would be practically defeated, as there
is in most cases no other way of sustaining the intent than
by establishing the unlawfulness of the act.

KULiE 65. — WTiere an act is criminal per se a criminal
intent is presumed from tlie commission of the act.^

Illustrations.

I. N. Is proved to have been stabbed \vith a dirk knife by T., from
which wound he instantly died. T. is presumed to have intended to
kill N.2

1 People V. March, 6 Cal. 543 (1S50) ; Murphy v. Com. 23 Grat. 960 (1S73) ; McCone
V. nigh, 24 Iowa, 336 (1868) ; Murphy v. Slate, 37 Ala. 142 (1861) ; Carroll v. State, 23
Ala. 28 (1853).

2 Com. V. York, 9 Mete. 93 (1845) ; Murphy v. People, 37 111. 447 (1865) ; Risgs v.
State, 30 Miss. 636 (1856) ; State v. Bertrand, 3 Oregon, 61 (1868) ; State v. Holme, 54
Mo. 153 (1873) ; Conner v. State, 4 Yerg. 137 (1833).

RULE G.').] THE rRESUMmON OF INTENT. 207

II. S. shoots ftt C. who is on horseback. The ball takes cfft-ct on C.
and kills him. S. testifies that he shot at C. intending only that his horse
Bhould throw him. The presumption is that S. intended to kill C.^

In CommomveaUh v. Wehster,"^ Chief Justice Shaw paid:
** Tho ordinary feelings, passions, and propensities under
which parties act are facts, known by observation and
experience; and they are so uniform in their o})cration
that a conclusion may be safely drawn that if a person acts
in a particular manner he does so under the influence of a
particular motive. Indeed, this is the only mode in which
a hirge class of crimes can be proved. I mean crimes
which consist not merely in an act done, but in the motive
and intent with which they are done. But this intent is a
secret of the heart which can only be directly known to
tho searcher of all hearts ; and if the accused makes no
declaration on the subject, and chooses to keep his own
secret, which he is likely to do if his purposes are criminal,
such criminal intent may be inferred and often is safely
inferred from his conduct and external acts."

Said Chief Justice Shaw, in case I.: "A sane man, a
voluntary agent, acting upon motives must be presumed
to contemplate and intend the necessary, natural and prob-
able consequences of his own acts. If, therefore, one vol-
untarily or willfully does an act which has a direct tendency
to destroy another's life, the natural and necessary conclu-
sion from the act is that he intended so to destroy such
person's life. So, if the direct tendency of the wilful act
is to do another some great bodily harm, and death in fact
follows as a natural and probable consequence of the act,
it is presumed that he intended such consequence, and he
must stand legally responsible for it. So, where a dan-
gerous and deadly weapon is used with violence upon the
person of another, as this has a direct tendency to destroy
life, or do some great bodily harm to the person assailed,

1 state V. Smith, 2 Strobh. 77 (1847).
' b Cush. 316 (laSO).

268 PRESUMPTIVE EVIDENCE. [rULE 65.

the intention to take life or do him some great bodily harm
is a necessary conclusion from the act." And to the same
effect is the language of the chief justice of Pennsylvania :
" lie who uses upon the body of another at some vital part,
with a manifest intention to use it upon him, a deadly
weapon, as an ax, a gun, a knife, or a pistol, must in the
absence of qualifying facts be presumed to know that his
blow is likely to kill; and knowing this must be presumed
to intend the death which is the probable and ordinary
consequence of such an act." ^

In case II. it was said: " If one were to fire a loaded
o-un into a crowd, or throw a piece of heavy timber from
the top of a house into a street filled with people, the law
would infer malice from the wickedness of the act ; so,
also, the law will imply that the prisoner intended the
natural and probable consequence of his own act, as in the
case of shooting a gun into a crowd, the law will imply
from the wantonness of the act that he intended to kill
some one, though it might have been done in sport. If
the prisoner's object had been nothing more than to make
Carter's horse throw him, and he had used such means only
as were appropriate to that end, then there would have
been some reason for applying to his case the distinc-
tion. * * * But in this case the act indicated an
intention to kill — it was calculated to produce that effect
and no other — death was the probable consequence and
did result from it.

" If a man raises his rifle and deliberately fires its con-
tents into the bosom of another,, or by a blow with an ax,
which might fell an ox, buries it into the brain of another,
the inference from the act is irresistible that death was
meant, and so the law presumes.

" The inferences of the mind, which are equally presump-
tions of law, are certain and conclusive in proportion as the
acts, from their nature and character, are certain to result
in death.

1 Agncw, C. J., in Com. v. Drum, 58 Pa. St. 17 (1868).

RULE G5.] THE TRESUJIPTION OF INTENT. 2G9

"Thus, the plunging of a poign.'ird into the heart of
another, we do not doubt, was intended to kill, but if aimed
only at the arm or leg, though death may be the result, yet
the mere fact of giving such a blow, bo long as that is the
only criterion by which we judge, renders the intent more
doubtful and the inference less strong. So, if one beat a
fulI-fT'rown man with his fist, and death ensues, wo would
ordinaiily feel far more doubt that death was intended
than if it had been produced by the use of a dangerous
weapon. So, too, regard may be had to the relative strength
and powers of endurance of the parties as well as to the
mode in which the violence is applied.

"A powerful blow given by the fist alone (but not re-
peated) upon the head of a full-grown man v/ould not
ordinarily be regarded as intended to produce death; but
what else could be inferred if the same blow were planted
upon the temple of an infant child?

" In many cases the inference that death is intended is
as strong when perpetrated by a drunken as when perpe-
trated by a sober man. Thus, if by a deadly weapon, as
by a rifle or a bowie knife, a bullet or blow is sent directly
or designedly to some vital spot, we should infer that death
Was intended with almost equal certainty, whether the per-
petrator were drunk or sober. So, too, when death is
produced by poison, and we see in the mode of its admin-
istration stealthy calculation, we would infer that death
(vas intended, whether he who administers the poison was
in a state of sobriety or intoxication, since in the very
character of the act we could read design.

♦' But we also know that intoxication produces more effect
upon the nervous system of some than of others. It clouds
and obscures the judgment of one more than it does another.
It produces greater extravagance of exertion and action in
some than it does in others, and sometimes consequences
result from such extravagant exertion and action of which
the party himself had no idea. All these things are to be

270 PRESUMPTIVE EYIDEXCE. [llULE G-i.

considered by this jury in determining upon this question
of intent."

The rule that a man must be supposed to intend the
natural results of his act is said by Hubbard, J., to be by
no means an infallible proposition, though often treated as
an axiom. " The result is not always evidence of the
supposed intent. When we look back upon events that
have happened we stand in a different position, we behold
with a clearer vision, as we embrace within our glance the
beginning and the end, the act and the consequence. But
the man who is doing the act may contemplate a very
different result. His feelings may be biassed by his
wishes, and sanguine feelings may be the cause of over-
looking- difficulties which to a more quiet temperament
might appear insurmountable. Disappointments also may
take place which were not anticipated.^

"It has been urged," said Comstock, J., in Curtis v.
Leavitt,^ "that the debtor corporation must be deemed to
have intended the result of its own acts. This is very
often a useful rule of evidence in arriving at a conclusion
upon a question of motive and intention, but it is not a
rule of law. If a given result must, by plain and absolute
necessity, follow from a particular action, or if it be so
likely to follow that no two minds of equal intelligence
could differ in conclusion, viewing the subject from the
same point of observation as the actor himself, then there
would be no injustice in holding that he intended such
result. Still, the question is one of fact ; what was the
intent?"

And in Quinehaug Bank v. Brewster,^ Sanford, J., said :
*' The intention of a party is a fact to be proved as all
other facts are proved, not, indeed, necessarily by direct
evidence or by the proof of other facts indicative of such

I

1 Jones V. Howland, 8 Mete. 30G (1314).
= ].-) X. Y. 1 (18o7).
3 30 Conn. 509 (1SC2).

RULE G6.] THE PRESUMPTION' OF INTENT. 271

intention, and from -u'liich facts its actual existence and
operation may be inferred. The law makes no conclusive
presumption in regard to it. Indeed, the law never con-
clusively presumes that a person intended to violate the
law or commit a fraud. The act done and the circum-
stances attending its commission may indicate more or less
clearly the intention of the party doing it, and authorize
an inference of more or less weight in rcirard to such
intention."

RULE GO. — But wlien a specific intent is required to
make an act an offense, tlie doinj^ of tlio act does not
raise a presumption that it was douo with tlie spe-
cific intent.

Illustrations.

I. R. is charged with assaulting with intent to murder one E. It Is
proved that R. flred a loaded pistol at E. There is no presumption that
E. intended to murder E.^

II. A statute makes a willful, deliberate and premeditated killing
murdiT in the first degree. B. kills C. There is no presumption that
the killing was deliberate and premeditated.'

In case I. it was said : *' The general rule is well settled,
to which their are few if any exceptions, that when a statute
makes an offense to consist of an act combined with a par-
ticular intent, that intent is just as necessary to be proved
as the act itself and must be found by the jury, as matter
of fact, before a conviction can be had. But especially
v/hen the offense created by the statute, consisting of the
act and the intent, constitutes as in the present case, sub-
stantially an attempt to commit some higher offense than
that which the defendant has succeeded in accomplishing
by it, wo arc aware of no well founded exceptions to the
rule above stated, and in all such cases the particular intent

1 Roberts V. reoplc, 19 Mich. 401 (1^70) ; Mnyhcr r. People, 10 7rf. 212 (18C2).

3 Com. f. Drum, 58 Pa. St. 9 (ISTP) ; St.Tlc r. ^rilche^, f4 Xo. 101 (1876) ; Stnte v.
Foster, Gl Id. 549 (187G) ; State v. Luiie, 04 Id. 319 (1876) ; Ilamby v. State, 36 Texaa,
623 (1S72).

272 PRESuaiPTivE evidence. [rule G7.

must be proved to the satisfaction of tlie jury ; and no
intent in law or mere legal presumption differing from the
intent in fact, can be allowed to supply the place of the
latter."

RULE G7. — The law presumes an Intent from acts in
the absence of dcclarations(A) where the party is
phj'sically and mentally capable of forming an in-
tent (B. )

Illustrations.

A.

I. The question is whether a certain incumbrance was intended to be
excepted from a covenant against incumbrances in a deed. It appears
that the incumbrance in question was notorious and of long standing,
and no mention of it was made in the deed. The presumption is that it
was intended to be excepted.^

II. In case I. it appeared that nothing was said by the parties in ref-
erence to the incumbrance. The presumption of an intention not to ex-
cept it is not raised from this fact alone. 2

In case I. it was said : " From the existence and notoriety
of the incumbrance, its long standing and the long acquain-
tance of the parties with it as a permanent thing, the fact
that no mention was made of it in the negotiation, though
other incumbrances were mentioned in the deed and
excepted, the committee drew the inference that it was the
intention of the parties that it should be excepted from the
deed. * * * The argument in favor of the finding of
the committee is very strong. An express warranty on the
sale of personal chattels does not apply to visible defects,
because the fact that the defect was plainly visible is evi-
dence that the purchaser knew it, and did not take his
warranty on account of it. This principle does not apply in
the case of a warranty by deed, because the terms of a deed
can not be contradicted or varied by parol, and undoubtedly
a man may, if he will be so foolhardy, make an express

1 Knai.p V. White, 23 Conn. 529 (1855). " Id.

KULE G7.] THE rRESUMTTION OF INTENT. 273

warrant}' in a deed, ^Yhere he kncws that it is broken at the
moment the deed is delivered, and knows also that the fact
is well known to the party to whom he ^rives it. But
ordinarily wc suppose that parties do not in this open
way intentionally involve themselves in lawsuits. And wc
do not see why the phiin, o})en, visible, and notorious
character of this incumbrance, connected as it was with full
knowledge of the parties of its existence, does not furnish
evidence that it was not intended by the parties to bo war-
ranted against, upon a principle analogous to that which
applies to visible defects in the sale of personal chattels by
parol."

In case II. it was said : " The defendant's counsel seem
to suppose that there could have been no intention to except
the right to maintain the ditch from the deed, because the
l^arties said nothing about it. But courts will often found
decisions and judgments upon the presumed intention of
the parties where nothing has been said. A man is pre-
sumed to intend the natural and probable consequence of
what he does : and on the principle many persons have been
found guilty of the highest crimes. A man is presumed to
accept of a conveyance of property made to him, on the
ground that it being for his benefit he would naturally wish
to receive it ; and on this principle titles have been estab-
lished. Indeed we always draw inferences from our
observation of the usual habits of men which lead to a great
variety of presumptions. These inferences are the conclu-
sions drawn by reason and common sense from premises
established by proof ; and arc as applicable to questions of
intention where the intention of parties becomes important
as to any other disputable fact. It is true, as remarked by
Judge Story, that if the proofs are doubtful and unsatisfac-
tory', and the mistake is not made entirely plain, equity will
withhold relief on the ground that the written paper ought
to be treated as a full and correct expression of the intent,
until the contrary is established beyond reasonable
18

274 niESOirTivE evidence. [rule G7.

controversy. But this docs not mean that there must
ahvavs exist direct and positive proof that the instrument
does not express the true intent of the parties in order to
justify the court in reforming it. To give any such con-
struction to the rule would be to deny any right in a court
'of equity to interfere unless the instrument could be shown
to vary from written memoranda of the terms of the
contract from which it is drawn up, or some evidence
equally decisive. We do not so understand the rule."

B.

I. A. is indicted for burglary. It is proved that A. broke and entered
a store in the night-time. The presumption is that A. intended to com-
mit a burglary. A. shows that he was at the time too drunk to have
entertained such an intent. The presumption of intent no longer arises.^

II. K. is indicted for shooting at S. with intent to kill him. R. shot at
S. while in a state of intoxication. The guilt of R. turns on the question
whether R. was in such a state of mind as to be able to form an intent.^

In case II. Coleridge. J., said: " There are two points for
your consideration, first, as to the act ; second, as to the
intent. With regard to the latter, the allegation respecting
it in the indictment must, no doubt, be proved to your
satisfaction before you can find the prisoner guilty upon the
full charge. The inquiry as to intent is far less simple
than that as to whether an act has been committed, because
you can not look into a man's mind to see what was passing
there at any given time. What he intends can only be
judged of by what he does or says, and if he says nothing
then his acts alone must guide you to your decision. It is
a sreneral rule in criminal law, and one founded on common
sense, that juries are to persume a man to do what is the
natural consequence of his act. The consequence is some-

1 Ingalls V. state, 48 Wis. 647 (1870) ; Wood v. State, 34 Ark. 341 (1870) ; Koberts ».
People, 19 Mich. 401 (1870) ; State v. Bell, 29 Iowa, 3ir, (1870) ; Stale v. Maxwell, 42 Id.
208 (1875) ; Wenz v. State, 1 Tex. App. 36 (187G) ; Loza v. State, Id. 488 (1877) ; U. S.
V. Kowen, 4 Cranch C. C. 604 (1835) ; State v. Coleman, 27 La. Ann. 691 (1875) ; State
V. Trivas, 32 Id. 1086; 3G Am. Rep. 293 (1880).

2 It. V. Monkhouse, 4 Cox, 55.

RULE G7,] THE PRESUMPTIOX OF INTENT. 275

times so apparent as to leave no dou])t of the intention. A
man could not put a pistol while he knew it to be loaded, to
another's head and fire it off without intending to kill him;
Init even then the state of mind of the party is most natural
to be considered. For instance, if such an act will be
done by a born idiot, the intent to kill could not bo inferred
from the act. So if the defendant is proved to have been
intoxicated, the question becomes a more subtle one ; but
it is of the same kind, namely, was he rendered by intoxi-
cation entirely incapable of forminf^ the intent charged?
The case cited is one of great authority from the eminence
of the judge who decided it. The only difficulty is in
knowing whether we get the exact words of the judge
from the case quoted, and even if we do whether all the
facts are stated which induce him to lay down the particular
rule. Although I agree with the substance of what my
brother Patteson is reported to have said,^ I am not so
clear as to the propriety of adopting the very words. If
ho said that the jury could not find the intent without
being satisfied it existed, I shall so lay it down to you ;
the only difference between us is as to the amount and nature
of the proof sufficient to justify you in coming to such a
conclusion, Under such circumstances as these when the
act is unambiguous, if the defendant was sober, I should
have no difficulty in directing you that he had the intent to
take away life, when if death had ensued the crime would
have been murder. Drunkenness is ordinarily neither a
defense nor excuse for crime and where it is available as a
partial answer to a charge it rests on the prisoner to prove
it, and it is not enough that he was excited or rendered
more irritable, unless the intoxication was such as to pre-
vent him from restraining himself from coramittino^ the
action in question, or to take away from him the power of
•forming any specific intention. Such a state of drunken-
ness may no doubt exist."

^ R. V. Cruise, S C. A P. 548.

276 rRESUMPTIVE EVIDENCE. [rULE 68.

RULE CS. — A person is presumed to intend to do what
is within his right and power rather than what is
beyond them.

Illustrations.

I. A., B. & C. were the devisees of an estate for life to become one in
fee; on tlie deatli of D. they made a division of the estate. The question
was whether they had divided the life estate or the estate in fee. Held,
that the presumption was the former.^

II. A lease of dwelling houses contains a covenant on the part of the
lessee that he will not, without the consent of the lessor, carry on any
trade in any house. He afterwards converts one of them into a public
house aud grocery, and the lessor, with knowledge of it, receives the rent
for more than twenty years. The presumption is that the lessor has
licensed this use.'

III. An action is brought on a contract for goods sold. The goods are
proved to be liquors. The presumption is that the plaintiff was duly
licensed to sell them.'

IV. A person makes a deed of land. The presumption is that he was
seized of the laud at the time.*

V. E. gives to L. an order on J., his debtor, for a sum less than the
debt; he also gives to F. an order on J. for the whole sum due from J. to
R. F.'s order being lost, the question is which was given first. The pre-
sumption is that the order in favor of L. was.*

VI. It is alleged that certain goods were sold contrary to law. The
burden of proving that the sale was in violation of law is on the party
alleging it.«

VII. A statute allows ten per cent interest to be reserved only in the
case of money loaned. A contract provides for the payment of ten per
cent interest without showing the consideration. The presumption is
that it was money loaned.'

VIII. The question is whether A. has committed a certain act. The
doing of the act renders A. liable to a penalty. That A. has done an act
involving a penalty will not be presumed.^

1 Pool V. Morris, 29 Ga. 395 (1859).

2 Gibson v. Doeg, 2 H. & N. G15 (1857).

3 lloran v. Weiler, 41 Pa. St. 470 (18C2),
* Bolster V. Cushman, 34 Mc. 428 (18.')2).

6 James River, etc., Co. v. Littlejohn, ISGratt. 53 (1867) ; Littlejohn v. Ferguson, /d

e Trott V. Irish, 1 Allen, 481 (18G1) ; llewcs v. Platls, 12 Gray, 143 (1858) , Stebbms
V. Leowolf, 1 Cush. 137 (1840) ; Kidder v. Xorns, 18 N. II. 532 (1847).

' Sutphen t;. Cushman, 35 111. 187 (1864).

8 Sidney v. Sidney, 3 P. Wms. 270 (1734) ; Clark v. Perriam, 3 P. Wms. 334 (1741) ;
Scholes V. Hilton, 10 M. & W. 15 (1842).

RULE G8.] THE rnESUMPTION OF INTENT. 277

IX. A. sues B. for his services as B.'s bar-keeper. There is no proof
whether B. is a legal seller of liquor, i.e., has a license. The presump-
tion is that he has.*

X. A. is sued for destroj'inf; certain dwelling houses. In mitigation
of damages ho offers to prove that the houses were houses of ill-fanio
and could not have been rented for any other purpose — honest people
would not live in them. The evidence is inadmissible; for the law can
not presume that future tenants will violate the law.'

XI. In an action by A. against B., A. alleged that B., who had char-
tered his ship, had put on board a dangerous commodity by which a loss
happened, without due notice to the captain, or any other i)erson employed
in the navigation; the burden of proving that B. did not give the notice
was on A.*

XII. A railroad company is authorized to construct a railroad in a
public street, with necessary switches and turn-outs; it malces certain
switches, which it is alleged are a nuisance. The presumption is that
they are necessary, and the burden is on the one complaining of the
nuisance.*

** It is a natural presumption," it was said in ca,se I.,
'♦ that men intend to do that which they have a right and
power to do rather than what is beyond their right or
power. * * * The division was of course meant to be
a complete one of whatever was divided unless the contrary
appears. The life estate could have been completely
divided at that time, nothing else being necessary to render
it perfect, but the remainder could not have been so
divided at that time, for that division could not have been
completed till the death of D. * * * This presumption
must prevail until rebutted by affirmative contrary evi-
dence."

*' It is a maxim of the law of England," it was said in
case II. *' to give effect to everything which appears to
have been established for a considerable lenirth of time,
and to presume that what has been done was done of rio-ht
and not in wrong. That practically has caused a scries of
trespasses to constitute a right so that it may be said, a right

1 Timson r. Moulton, 3 Gush. 2G9 (1849).

a Jolmsou I'. Farwcll, 7 Me. 370 (1831).

8 Williams f. East India Co., 3 East, 104 (1S02).

* Carsou v. Ceutial li. Co., 35 Cal. 325 (1608).

278 PRESUMPTIVE EVIDENCE. [rULE 68.

has o-rown out of proceedings which are wronf2;fuI. But in
truth it is nothing more than giving effect to notorious and
avowed acquiescence. No person would have permitted a
covenant to be broken for more than twenty years, unless
he was aware that it was broken as a matter of right. It is
not necessary in point of form to send the case to a jury
to find the facts which the judge may tell them they ought
to presume."

In case V. it was said: " In the absence of any evidence
on the subject the presumption must be that L.'s order was
given first. For it would have been an act of folly as well
as a fraud in R. to give L. an order for the amount of his
debt when he had already given F. an order for the whole
balance due him from the company. The court will not
presume this, in the absence of all evidence, but will pre-
sume the contrary."

It was argued in case XII., that to compel A. to prove
the want of notice was compelling him to prove a negative
which in a civil action at least was against the general rules
of evidence. But Lord Ellenborough said; <'That the
declaration in imputing to the defendants the having wrong-
fully put on board a ship without notice to those concerned
in the management of the ship, an article of a highly dan-
gerous, combustible nature, imputes to the defendants a
criminal negligence, can not well be questioned. In order
to make the putting on board wrongful the defendants must
be cognizant of the dangerous quality of the article put on
board, and if being so, they yet gave no notice considering
the probable danger thereby occasioned to the lives of those
on board, it amounts to a species of delinquency in the per-
sons concerned in so putting such dangerous article on
board for which they are criminally liable and punishable
as for a misdemeanor at least. We are, therefore, of opin-
ion, upon principle and the authorities, that the burden of
proving that the dangerous article in question was put on
board without notice rested upon the plaintiff's alleging it
to have been w^rongfuliy put on board without notice of its
nature and qualit}'."

CHAPTEE XIY.

THE PRESUMPTIONS FROM THE COURSE OF NATURE.

KUL.E GO. — The law presumes that in a particular case
the regular course of nature applied or was followed.

lUustratiojis.

I. A. is charged with a crime. It Is shown that A. at the time it was
committed was under fourteen years of age. The presumption is that
A. was incapable of committLng the crime. ^

II. A crime is committed by a woman in the presence of her husband.
The presumption is that it was doue under his coercion.^

III. A wife commits a tort In the presence of her husband. The pre-
sumption is that she acted under coercion of the husband, and she is not
liable.'

IV. A statement is proved to have been made in the presence of II.
It will be presumed that H. heard it.*

V. A Avife who lives on her own premises, and has children by a former
husband, living with her, claims certain property as "head of a family."
The presumption is that the husband is the "head of the family" and
the wife can not recover.*

VI. A deed of gift of property to a married woman is proved to have
been made, and the question is where is it? The presumption is that it
is in the possession and custody of her husband.^

VII. Money is advanced by a parent to his child. The presumption is
that this is done as a gift and not as a loan.'

1 R. t'. Owen, 4 C. & P. 236; Queen v. Smith, 1 Cox C. C. 260; Com. v. Mead, 10
Allen, o9S; People v. Davis, 1 Wheeler, 230; Walker's Case, 5 City Uall Kec. 137;
Dove r. State, .'57 Ark. 2(;2 (1S<>1).

2 Com. f. NOal, 10 Mass. 152 (1S13) ; R. v. Knight, 3 C. * P. 116; R. r. Conolly, 2
Lewin,220; R. r. Price, 8 C. & P. ]'.»; R. i: Archer, 1 Moody, 14.>; R. v. Matthews, 1
Den. C. C. 540; Frcel v. .State, 21 Ark. 212 (ISCO). P.ut statements made by a married
woman where the boundary between her land and her husband's is, are not jire-
Bumcd after her decease to have been made under coercion by him. Pike v. llayes,
UN. II. 19 (1S43).

8 Marshall v. Cakes. 51 Me. 309 (1S64).

* Ilochrieter v. People, 2 Abb. App. Dec. 303 (1864) ; aUter, of course, were he
unconscious from sleep or stupor. Lanergaa f. People, 3'J X. Y. 41 (IStJS).

6 Clinton v. Kidwell, S2 111. 427 (1S76).

• McLain v. Winchester, 17 Mo. 4.1 (1852).
' Uicks V. Keats, 4 B. & C. 71 (ia25).

( 270 )

280 PRESUMPTIVE EVIDENCE. [itULE G9.

VIII. A husband buys a piece of laud and convoys it to his wife.
Afterwards he makes improvements on it at his own expense. This will
be presumed to be a gift to the wife.i

IX. A husband and wife are living together. The wife purchases cer-
tain articles for the house. The presumption is that this was done by his
direction. 2

X. In a civil or criminal case, as it may be, the question arises whether
a party or a prisoner or a witness, or any person in fact, is sane. The
presumption is that he is sane, and the burden of proof is on the party
alleging insanity .^

In case I. Littleclale, J., said to the jury: " The prisoner
is only ten years of age, and unless you are satisfied by the
evidence that in committing this oflense she knew she was
doing wrong, you ought to acquit her. Whenever a person
committing a felony is under fourteen years of age, the
presumption of law is that he or she has not sufficient capac-
ity to know that it is wrong, and such person ought not
to be convicted, unless there be evidence to satisfy the jury
that the party at the time of the offense had a guilty knowl-
edge that he or she was doing wrong." And in the case
next cited Erie, J., said : " Where a child is under the age
of seven years, the law presumes him incapable of commit-
ting a crime after the age of fourteen ho is presumed to
be respon.sible for his actions as entirely as if he were
forty ; but between the ages of seven and fourteen * * *
guilty knowledge must be proved by the evidence and can
not be presumed from the mere commission of the act."

1 Ward V. Ward, 36 Ark. 586 (18S0).

2 Lane v. Ironmonger, 13 M. & W. 368; Pickering v. Pickering, 6 N. II. 124; StaU
V. Meek, 70 Pa. St. 181 ; Felker v. Emerson, 16 Vt. 053; Pliillipson v. Ilayter, L. R. 6
C. P. 38; Morgan v. Clietwynd, 4 F. & F. 451; Freestone v. Butcher, 9 C. & P. 047.

8 U. S. V. Lawrence, 4 Cranch C. C. 514 (1S35) ; U. S. v. McGlue, 1 Curt. 1 (1851) ;
Burton f. Scott, 3 Rand. 389 (1825) ; Tliornton v. Appleton, 29 Me. 300 (1849) ; Cordrcy
V. Cordrey, 1 Iloust. (Del.) 2G9 (1855) ; Stubbs v. Houston, .33 Ala. 5."')5 (1S59) ; Lilly v.
Waggoner, 27 111. 395 (I-iG2); State v. Pike, 49 N. II. 399 (187»). In Mill contests ia
Massachusetts there is said to be no presumption of the sanity of a testator, but the
person ofTering the will for probate muf:t jirove it. Crowninsbield v. Cronwinthield,
2 Gray, 524 (1854) ; Creed v. Pratt, 18 Pick. 115 (1836) ; Phelps v. Ilartwell, 1 M.-'ss. 71
(1804) ; Blaney r. Sergeant, I Mass. 335 (1S05). Where the attesting witnesses tc a
deed are dead there is no presumption that if living they would testify that the
grantor was of sane mind at the time of the delivery of the deed. Flanders v. Davis,
19N. U. 139 (1848).

RULE CO.] PKESUMmOXS FHOM COURSE OF NATURE. 281

In R. V. Smith,^ a boy of ten years of age was indicted
for setting fire to a hay rick. There was no evidence of
any malicious intention. Early, J. (to the jury) : *' Where
the child is under the age of seven 3'ears, the law presumes
him to be incapable of committing a crime; after tiie ago
of fourteen, h^ is presumed to be responsible for his actions
as entirely as if he were forty, but between the age of seven
and fourteen, no presumption of law arises at all and
that which is termed a malicious intent — a guilty knowledge
that he was doing wrong — must be proved by the evidence,
and can not be presumed from the mere commission of the
act. You are to determine from a review of the evidence
whether it is satisfactorily proved that at the time he fired
the rick (if you should be of opinion he did fire it) he had
a guilty knowledge that he was committing a crime." The
prisoner was acquitted.

In Walkei-'s Case ^ the prisoner, a boy, was indicted for
petty larceny in stealing ten pounds of copper bolts. It ap-
peared that after stealing them he had carried them to a
store and sold them. The mother of the boy, being sworn
in his favor, testified that he was but a few weeks more than
seven years of age, and that in consequence of falling on
his head his senses were impaired. No evidence was offered
on the part of the prosecution to show his capacity. The
court charged the jury that as a child of seven was held in-
capable of crime, and between that age and fourteen it was
necessary to show his capacity, and that in proportion as
he approached to seven the inference in his favor was the
greater, and as he approached to fourteen the less, there
was not sufficient evidence in the case to support the pro-
secution, especially as strong evidence of incapacity had
been produced on his part.

In People v. ToicnsencP a number of defendants were
indicted for permitting a nuisance on their lands. On ap-
peal Bronson, J., said: "Although one object of the prose-
cution may be the abatement of the nuisance there may

1 1 Cox, 2G0 (1S45). ; 5 City Uall Uec. 137. » 3 Ulll, 4S1 (lS-12).

282 PRESUMPTIVE EVIDENCE. [RULE 69.

also be a judgment of fine and imprisonment against the
defendants. They must, therefore, be tried on the same
principles which would govern if they were charged v/ith
any other misdemeanor. The case does not state the ages
of the infant defendants, but if, as was suggested in the
argument, some of them are only a year or two old, they
are not doli cajxix, and could not rightfully be convicted of
any offense."

In C ommomoealth v. Mead^ the defendant, Mary Mead,
was indicted for selling intoxicating liquors. It was proved
at the trial that she was a daughter of Eliza Mead, and at
the time of said sales was under twelve years of age, living
with her parents, and that the sales were made by her in the
dwelling house of her parents, and under and by direction
of her mother, to Avhom the liquors belonged. The defend-
ant also put in evidence a license granted to her mother to
sell liquors under the internal revenue acts of the United
States. The defendant requested the court to instruct the
jury that if she, at the time of making the sales, was under
twelve years of age, and if the sales were made under the
general direction of the mother, in the dwelling house of
the parents of the defendant, then she could not be con-
victed under this indictment. The judge declined so to rule,
and instructed the jury that the license was no defense, if
the sales w^ere made in violation of the statutes of Massa-
chusetts; and that if the defendant did, in the dwelling
house of her parents, and while she lived with them, and by
direction of her mother, and while under twelve years of
age, make three or more separate sales of the liquor they
should find for guilty. This instruction on appeal was
reversed, Bigelow, C. J., saying: " The question of the
legal competency of the defendant to commit the offense
charged in the indictment was distinctly raised in the
present case by the fact proved at the trial that she was
under twelve years of age. The rule of the common law
is perfectly well settled, that a child between the ages

1 10 Allen, 308 (ISCS"),

RULE CO.] PIIESUMPTIOXS FROM COURSE OF NATUKE. 283

of seven and fourteen is not presumed to be doU capax, and
the question whether, in committing an oflense, such child
in fact acted with intellii^enco and capacity, and an under-
standinij of the unhuvful character of the act charirod, is to
be determined hy the jury upon the evidence, and in view
of all the circumstances attending the alleged criminal trans-
action.^ This rule is uniformly applied when children
under fourteen and above seven years of ajre arc charn^cd
with murder or other felonies. A fortiori^ it is applicable
where they are accused of lesser offenses, or with the com-
mission of acts coming within the the class of mala pt'ohibUa.
These do not so violently shock the natural moral sense or
instinct of children, and Avould not bo so readily recognized
and understood b}'' them to be wrong, or a violation of duty,
as the higher crimes of murder, arson, larceny, and the like.
Although the attention of the judge at the trial was drawn
to the fact that the defendant was of tender years, so that
no presumption of legal capacity to commit crime existed,
he wholly omitted to give any instructions from which the
jury could be led to infer that it was their duty to find that
the defendant knew the unlawful character of the act with
which she was charged, before they could render a verdict
of guilty against her. For aught that we can see, the ver-
dict was rendered without any consideration of the legal
competency of the defendant to commit the offense alleged
in the indictment. The case was one which seems to us to
have required an explicit instruction on this point. It is
true that it Avas not necessary to show actual knowledge by
the defendant of the unlawfulness of the act, if suflicicnt
legal capacity to commit crime was otherwise provi-d. If
cai)acily is established, knowledge may be presumed. Xor
is it necessary to offer direct evidence of capacity. It may
be inferred from the circumstances under which the offense
was committed. But, nevertheless, it is to be established
as a distinct fact. "We are unable to see anything in the

1 1 Hale P. C. 2-2-27; 1 Archb. Crim. Tx. 10; 1 Russ. on Crimes (Tlh Am. ciL),!;
Rex V. Owcu, 4 C. & P. 2J6.

284 PRESUJiIPTIVE EVIDENCE. [rULE 69.

facts set out in the exceptions -which tend to prove that the
defendant was cognizant of the illegal character of the act
vrhich she committed. She seems to have made the illegal
sale in the presence of and in olicdience to the express com-
. mand of her mother. This fact of itself had some tendency
to show that the child did not understand that the act which
she was told by her parent to commit was wrong, and, in
connection with the request for instructions which was
made by the defendant's counsel, required the judge to give
full and explicit instructions on the subject of legal com-
petency to commit crime. The omission of such instruc-
tions was an error, which in our judgment, renders it
necessary that there should be a new trial of the case."

In Willet V. Commonwealth ^ the opinion of the court is
as follows: "Jesse Willet, a boy about twelve years of
age, was indicted in the Pendleton Circuit Court upon a
charge of false swearing, and sentenced to confinement in the
state prison for fifteen months. There being testimony con-
ducinji to show that the accused had made contlictino^ state-
ments with reference to the same matter, when examined
as a witness before the grand and petit juries of Pendleton
County, his counsel asked the court to say to the jury :
' That the law presumed the prisoner incapable of the crime
of false swearing if, at the time, he was under fourteen
years of age.' This instruction was refused, and no in-
struction given presenting this view of the case to the jury.
The doctrine recognized in the elementary books upon the
question involved is, ' that infants are ^;?'zma facie unac-
quainted with guilt, and can not be convicted, unless at the
time the offense was committed, they had a guilty knowledge
that they w^erc doing wrong.' This is not even a disput-
able presumption when applied to an infant under seven
years of age ; but between seven years and fourteen
the commonwealth may rebut the presumption b}^ showing
a guilty knowledge on the part of the accused. Russell

^ 1 13 Dush, 230(1877).

I

KULE G9,] rRESUMPTIOXS FKOM COUKSE OF NATURE. 285

says that thi.s presumption will diminish with the advance
of the offender's years, and will depend upon the particular
facts and circumstances of his case. 1 Russell, p. 2.
This same author suf^gcsts that " the proper course is to
leave the case to the jury to say whether at the time of the
commission of offense such person had guilty knowledge
that he was doing wrong," The test given by Lord Hale
is, * whether the accused at the time was cupablo of dis-
cerning between good and evil.' Taylor, in his work on
Evidence, questions the philosophy of the rule laid down
by Hale, for the reason that it is too indefinite, and may be
applied * either to legal responsibility or to moral guilt.'
1 Taylor on Evidence, 190. Few infants between the
ages of seven and fourteen years, with ordinary intellects,
are so ignorant as not to know that to lie or steal is wrong ;
and, therefore, in applying the rule laid down by Lord Hale
or Russell, the infant derives no benefit from the legal pre-
sumption, and instead of being favored by the law, is dealt
Avith in the same manner as those more advanced in life. A
sense of moral guilt only on the part of the infant, in the
absence of a knowledge of his legal responsibility for his
wrongful act, will not authorize a conviction. When the
prosecution satisfies the jury that the infant, at the time he
committed the offense, knew it was wrong, and was aware
of his legal responsibility for the commission of the crime,
the legal presumption of innocence on account of his tender
years no longer exists; but in the absence of such proof,
the legal presumption must produce an acquittal. The
court below having erred in refusing to instruct the jurj^on
this branch of the case, the judgment is reversed and cause
remanded, with directions to award a new trial, and for
further proceedings consis;tent with this opinion."

In State v. Sam,^ the opinion of the court was as fol-
lows: *' The question brought up in this case for review
is whether a person of color under fourteen years of age,

1 Wiust. COO, (1S64).

286 PEESUMPTmi EVIDENCE. [rule G9.

can be convicted of an assault with intent to commit a
rape. By the provisions of the Rev. Code, ch. 107, § 44,
and ch. 34, § 2, the offense charged in the bill of indict-,
ment is declared to be a capital felony, and is, therefore,
entitled to be considered under the safeguards which the
law has thought proper to throw around human life. By
the common law persons between the ages of seven and
fourteen may be convicted of most* offenses, if, added to
the proof of the corpus delicti, there be proof also of the
mischievous mind. There is a legal presumption that such
persons are doli incapaces; but it is a rebuttable presump-
tion. It is not so in respect to the crime of rape. The
presumption against its commission by persons below the
age of puberty (fourteen) is irrebuttable. This is not so
much on the ground of incapacity of mind or will, but of
physical impotency. It will follow as a plain legal deduc-
tion from this, that the person under fourteen can not com-
mit an assault with intent to commit a rape. It is a logical
solecism to say, that a person can intend to do what he is
physically impotent to do. These principles are supported
by the following authorities: Arch. Crim. Pr. 3 ; 3 Chitty's
Crim. Law, 811; Bex v. Uldershaw,^ and Regina v. PJdl-
lips.'^ The courts of two of the States north of us have held
convictions for * assaults with intent ' right, when the per-
sons were under fourteen. But it is noticeable that the
offense in these States is a misdemeanor. In the one case
there was a divided court, and in the other the common-law
principles, as here laid down, were recognized ; but the
court undertook to alter them, to suit the altered tempera-
ment of the population. These do not at all affect the
stability of the law as now expounded. With the excep-
tions noticed, it has been uniform, we think, in all the set-
tlements of the continent which have adopted the common
law of England. By a prosier consideration of principles,

1 li Eng. Com. Law, 33G. » 31 Eng. Com. Law, 763.

RULE G!}.] PKESUMmOXS FROM COURSE OF NATURE. 287

it will be seen why the fact found by the juryth.it there
was an emission of seed from the person of the prisoner,
does not materially aflect the case. The presumption which
arises from want of age, applies equally to the oflcnse of
rape and the offense of assault with intent to commit it.
Both presumptions are irrebuttable. The case of State v.
Pur/It,^ recognizes the distinction here made. So far from
inpugning it is strictly in accordance with them, A large
portion of our population is of races from more Southern
latitudes than that from which our common law comes. We
have, indeed, an element of great importance from the torrid
zone of Africa. It is unquestionable that climate, food,
clothing, and the like, have a great influence in hastening
physical development. Whether it may not be advisable to
move down to an earlier age than fourteen, the period of
puberty, for a portion, if not for all the elements in our pop-
ulation, may be a proper inquiry for the statesman. The
courts decide the law as it stands. The legislative body
will inquire whether the exigencies of the age require
change.

In B. V. Smith,- the wife acting, as the jury found, under
the coercion of her husband wrote letters to the prosecutor
pretending that she had become a widow and requesting a
meeting at a distant place. The meeting was granted, and
the wife, dressed as a widow, met the prosecutor at a rail-
way station, and induced him to go with her to a lonely
spot, where the husband fell upon him and inflicted the in-
juries alleged in the indictment. A verdict of guilty of
felonious wounding was entered against both husband and
wife, the former was sentenced but the judge reserved the
question of the wife's liability for the full court. It was
afterwards considered by Pollock, C. B., Willis, J., Bram-
well, B., Channell, B., and Byles, J., who reversed her
conviction, Pollock, C. B., saying: "The jury have dis-

I 7 Jones, Gl. ' Dears. & B. 653 (1S5^).

288 PRESUMPTI"V*E EVIDENCE. [RULE G9.

posed of this case by their finding. They have found that
Sarah Smith was a married woman ; that she acted under
tlie coercion of her husband and that she herself did not in-
flict any violence upon the prosecutor. The conviction,
therefore, so far as it extends to her, must be reversed."

In R. V. Hughes^ Thompson, J., said : " The law, out of
tenderness to the wife, if a felony be committed in the
presence of the husband, raises a presumption prima
facie * * * that it was done under his coercion."

In R. V. Connolly,'^ the prisoner, Sarah Connally, was
indicted for uttering base coin. The evidence was that she
had o-one from house to house uttering base coin, and that
her husband accompanied her to the door but did not go in.
Bayley, J., directed the jury to infer that she was acting
under the coercion of her husband and to find her not
guilty.

In R. V. Archer^ the prisoner and his wife were indicted
for burglary and receiving stolen goods. The judge told
the jury that generally speaking, the law does not impute
to the wife those offenses which she might be supposed to
have concurred in by the coercion or influence of her hus-
band and particularly where his house is made the recepta-
cle of stolen goods ; but if the wife appears to have taken
an active and independent part and to have endeavored to
conceal the stolen goods more effectually than her husband
could have done, and by her own acts, she would be respon-
sible as for her own uncontrolled offense. On appeal all the
judo-es held that as the charge against the husband and wife
was joint, and it had not been left to the jury to say whether
she received the goods in the absence of the husband, the
conviction of the wife could not be supported, though
she had been more active than the husband, and they rec-
ommended a pardon for her.

In R. V. Stapleton,^ S. and his wife were indicted for a
robbery, in which the latter appeared to have taken an active

1 2 Lewin, 230 flSSO). 3 i Moody, 145 (]82n).

s 2 Lewin. 229 (1829). ■» 1 Or. & D. 163 (lJ;28).

IIULE G9.] rRESUMrriONS FROM COURSE OF NATUUE. 289

part. Bushc, C. J., left the question of coercion to the
jury, who found both prisoners f^uilty. The point was re-
served for the consideration of the judges, who hehl thtit
the presence of the husband afforded only presumptive
evidence of coercion of the wife, which was capable of being
repelled by other evidence. Some of the judges doubted
whether the privilege of a feme covert existed in any case
attended with violence to the person. The conviction was
sustained.

In Queen v. Buncomhe} ]Mary Buncombe was indicted
for assaulting and robbing one Boley. Marshman, in
opening the case for the prosecution stated that it appeared
that the offense was committed by the prisoner in the pres-
ence of her husband, Avho had absconded. Coleridge, J,,
♦' Can you proceed with this case? If the offense was com-
mitted in the presence of her husband, how can she be
liable? " Marshman contended that the wife was liable for
an offense committed in the presence of her husband where
violence is used ; citing the following passage from Kus-
sell on Crimes,'- in reference to femes covert: " And if she
commit a theft of her own voluntary act, or by the bare
command of her husband, or be guilty of treason, murder,
or robbery in company with or by coercion of her husband,
she is punishable as if she were soZe." Coleridge, J. :
" On such an authority the case must proceed. But if the
prisoner be convicted I shall reserve the point for the con-
sideration of the judges." The prisoner, however, was
found not guilty.

In R. V. ]Vrir/J((,^ it was ruled that where a larceny is
jointly committed by a husband and wife, the wife is entitled
to be acquitted as under coercion, and that the woman,
being indicted as the wife of A. B. (the male prisoner) is
sufficient proof that she is so for this purpose. In this
case Henry Knight and Anne his wife were indicted for
stealing curtain pins. From the evidence it appeared that

1 1 Cox C. C. 1S3 (lSi5). 'Vol. 1, p. IS. 3 IC.&r. 116(1823).

19

290 PRESOiPTivE EVIDE^■CE. [rule G9.

both the prisoners were in company at the time of the theft.
Park, J., directed the jury to acquit the female prisoner, be-
cause if a man and his wife jointly commit a felony, the
wife, being presumed in law under his coercion and control,
is entitled to an acquittal. It was not necessary in this case
to adduce evidence to show she was his wife, as it was ad-
mitted on the face of the indictment, the prisoners being
indicted as "Henry Knight and Anne his wife." "An-
other strong case is that of Elizabeth Ryan, better known
b}^ the name of Paddy Brown's wife, who was tried at the
Old Bailey under the statute of 16 Geo. II., ch. 31, for con-
veying implements of escape to her husband who was in New-
gate, convicted of felony. It appeared that she procured the
instruments in question by her husband's direction. She
was convicted, but afterwards pardoned, it was understood
because the judges considered that she acted under coercion,
though her husband, from being in prison could not be
present." ^

In a note to R. v. Knigld^ it is said : "In all cases ex-
cept treason and murder where a felony is committed by a
husband and wife jointly, or by a wife in company with her
husband, the wife being presumed in law under his control,
is entitled to an acquittal. A strong case on this subject
occurred in the Midland Circuit before Mr. Justice Burrough.
A husband and wife were jointly indicted for a robbery;
it appeared that the husband was reluctant, but his wife com-
pelled him to go with her and commit the robbery ; the
learned judge directed the jury to acquit the woman on the
ground of coercion, saying that it was a presumption of
law which he and they were bound by ; however in fact the
coercion might be the contrary way. The woman was ac-
quitted and the man found guilty." The later cases, it is
obvious, do not go so far as this in exculpating the wife.

In it. V. Squire,^ tried at the Stafford Lent Assizes, A. D.

1 Note to K. V. Knight, 1 C. & P. 116 (18S2).

2 1 C. &P. 116 (1S2.'.).

3 Burns, Justice, tit. Wife.

RULE G9.] rRESUMPTIONS FHOM COURSE OF NATURE. 291

1700, Charles Squire and Hannah his wife were indicted for
tlie murder of a boy who was bound as a parish apprentice
to the prisoner Charles ; and it appeared in evidence that
])oth the prisoners had used the apprentice in a most cruel
and barbarous manner, and that the wife had occasionally
committed the cruelties in the absence of her husband. But
the surgeon who opened the body deposed that in his judg-
ment the boy died from debility and want of proper food
and nourishment, and not from the wound, which he had re-
ceived. Upon this Lawrence, J., directed the jury " that as
the wife was the servant of the husband, it was not her duty
to provide the apprentice with sufficient food and nourish-
ment, and that she was not guilty of any breach of duty in
nc'dectino- to do so: though if thehusband had allowed suf-
ficient food for the apprentice, and she had wilfully with-
holden it from him, then she would have been guilty; but
that here the fact was otherwise, and, therefore, although
in foro conscientice the wife was equally guilty with her
husband, yet in point of law, she could not be said to be
guilty of not providing the apprentice with sufficient food
and nourishment."

In Commonwealth v. Burlc^ a married woman was in-
dicted for selling intoxicating liquors, and it appeared that the
sales were made in a dwelling house, her husband being at the
time either within or just outside the house. The prisoner
asked the judge to instruct the jury " if they found that the
husband was near enough for the wife to act under his imme-
diate influence and control, though not in the same room-
the wife was not liable for such sale." But the judge in,
structed them that " if the husband was actually i)resont at
the time of the sale, the wife would be presumed to act
under his coercion, and could not be found guilty, and that
if the wife sold the liquor as the agent and by the authority
of her husband, and as such received the money, the jury
would be authorized in finding her guilty." Being con-

1 11 Gray, 437 (1S5S) ; Com. r. Welch, 07 Mass. 504 (1867).

292 PRESUMPTIVE EVIDENCE. [eULE 69.

victed she appealed to the Supreme Court where the ruling
■svas held erroneous. " The instruction prayed by the defend-
ant," said Thomas, J., *' should, we think, have been given.
If the wife acts in the absence of the husband there is no
presumption that she acts under his coercion.^ But if the
husband was near enough for the wife to act under his imme-
diate influence and control, though not in the same room,
he Avas not absent within the meaning of the law. The wife,
acting in the presence of the husband, and under his imme-
diate influence and control, is not an agent within the mean-
ing of the statute of 1855.^ The laAV regards her as not in
the exercise of her own discretion and will, and therefore is
incapable of committing an offense. How far the usages
of society or the new relations of husband and wife may
have qualified or reversed the presumption of the common
law, is for the Legislature, not the court to consider."

In People v. Toionsend^^ several owners of property were
indicted for a nuisance. On appeal Bronson, J., said:
"Nor do I see on what principle the femes covert were in-
cluded in the indictment. During coverture the husband
has the control of the wife's estate, and if he erects a
nuisance on her land she can not be made to answer
criminally for that offense."

In Commonwealth v. Leivis, it was said : " The humanity
of the criminal law does indeed in some instances consider
the acts of the wife as venial, although she has in fact par-
ticipated with her husband in certain acts which on the part
of the husband would constitute an offense as against him;
upon the ground that much consideration is due to the great
principle of confidence which a feme covert may properly
place in her husband, as well as the duty of obedience
to the commands of the husband by which some femes
coverts may be reasonably supposed to be influenced in such
cases. Thus in cases of theft or burglary, where the wife is

1 Com. V. Murphy, 2 Gray. 511. » 3 Hill, 481 (1842).

? Ch. 215, sec. 15.

I

RULE G9.] rKESUMPTIOXS FRCiM COURSE OF NATURE. 293

in company with her husband, the law presumes that she
acts under coercion, and slic is to be acquitted." ^

In State v. Willianifi,' the husband of the feme defend-
ant was jointly indicted with her for an assault and battery
upon one Anna Davis. It was in evidence that the defend-
ant and her husband committed a battery on the prosecu-
trix. The defendant's counsel asked the court to instruct
the jury that the feme defendant was not guilt}', as the
offense had been committed with her husband, and in his
presence. The court denied so to charge, but instructed
the jury that when a married woman, in the presence of her
husband, committed an offense against natural law, and
with force and violence, the presumption of coercion did
notarise. Defendant excepted; verdict of guilty; judg-
ment and appeal. In the Superior Court the verdict was
set aside, Rodman, J. saying: *' The liability of a "wife for
a crime committed in the presence of her husband, has been
variously stated by respectable text writers. Blackstone'
says : 'And in some felonies, and some inferior offenses com-
mitted by her (the wife) through constraint of her husband,
the law excuses her ; but this extends not to treason or mur-
der.' The same writer in Book IV. sa3's: *And she will be
guilty in the same manner, of all those crimes which like
murder are mala in se, and prohibited by the law of nature.' *
Also, in Archibold's Crim. Prac. and PIeadin<i: ' So if a
wife commit an offense under felony, and in company with
her husband, she is liable to punishment as if she were not
married.* For this is cited, 1 Hawk, ch.; sec. 13: 'And
generally a feme covert shall answer as much as if she were
solcy for any offense, not capital, against the common law
or statute. And if it be of a nature that maybe committed
by her alone without the concurrence of her husband,'
etc. It was upon a recollection of these authorities
that his Honor below ruled in the case as he did. Never-

I Com. r. Lewis, 1 Mete. 153 (1840). ' Book 1, p. 444.

s 65 N. C.3G5 (1871). < 1 Kuss. Or. 16.

204 PRESUMPTIVE EVIDENCE. [rULE GO.

tbcless upon a fuller examination of the authorities, we
are of the opinion that he was in error. It seems to be
admitted by all the authorities, that if a wife commit any
felony (with certain exceptions not material now to con-
sider), in the presence of her husband, it shall be presumed,
in the absence of evidence to the contrary, that she did it
under constraint by him, and she is therefore excused. It
is generally agreed that treason and murder are exceptions
to this rule; and some add to these manslaughter, robbery,
and perjury, although the last is not a felony. The most
important (perhaps all) of the authorities w'ill be found
referred to in the notes to Commonwealth v. JSfeal,^ in the
argument of the counsel for the prisoner in Regina v.
Cruse. "^ As has been seen, several eminent text writers
confine the presumption to cases of felony. But the more
recent cases, both English and American, extend it to mis-
demeanors as well; those cases excepted, which from their
nature w^ould seem more likely to be committed by women,
such as keeping a bawdy house, etc. The case above re-
ferred to, of Commonwealth v. Neal,^ was an indictment
against husband and wife for an assault and battery, and is
therefore in point. Bishop^ considers the rule applicable
to all offenses whatever, with certain exceptions, such as
treason, murder, etc. There are many English cases in
which it has been applied in indictments for receiving
stolen goods.^ Hex v. Price^ was for a misdemeanor in
uttering counterfeit coin ; and as was Connolh/s Case?
When our accustomed authorities differ as to a principle, it
is always proper to look at its foundation in reason. Mr.
Lewin in his note to Rex v. Hughes^ says, that the reason

1 10 Maes. 152; 1 Lead. Grim. Cases, 81.

2 2 Moody 0. C. 53, and in 1 Bishop C. Law, 452.

3 10 Mass. 152.

* 1 vol., sec. 452.

6 Rex V. Archer, 1 Moody C. C. 143; Regina i'. Barber, 4 CoxC. C. 272.

6 8 G. & P. 19.

1 1 Lewin G. C. 227.

8 2LewinC. C. 225.

RULE G9.] PKESUMPTIONS FROM COURSE OF NATURE 295

of the rule in cases of burglary and larceny, had been said to
be, that the wife might not know whose the goods were that
were taken. This reason he properly rejects as insufficient
and suggests that it was considered odious and unjust to
inflict on the wife a severe punishment when the husband
could plead his clerg}'' (which a woman could in no case
do), and thus escape with a slight one. The reason would
confine the principle to the clergyal)le felonies. It seems,
however, more natural to suppose the principle to have been
founded upon the fact, that in most cases the husband has
actually an influence and authority over the wife, which the
law sanctions, or at least recognizes.^ In that case the reason
would apply to a misdemeanor with at least as much force
as to clergyable fitness, and this, we think the true view. It
is also conceded by all the authorities that the presumption
may bo rebutted by the circumstances appearing in evidence,
and showing that in fact, the wife acted without restraint ;
or by the nature of the offense. But in this case no cir-
cumstances appear tending to rebut the presumption which
the law raises; and the case was not put to the jury in that
point of view."

In Commonwealth v. Eagan,'^ on the trial the evidence
showed that while the defendant's husband and son were
using angry words towards Saxton, the defendant, in the
immediate presence of her husband, threw a pail of dirty
water on Saxton. This Avas all the material evidence in the
case. Upon these facts, the defendant asked the judge to
instruct the jury that the presumption was that she acted
under the coercion and control of her husband, and should
be acquitted, but the judge declined, and instructed the jury
that if they were satisfied that she did the acts proved of
her own free will, free from the coercion or influence of
her husband, they would be warranted in convicting her.
The defendant was found guilty and moved in arrest of

1 1 Hawk., ch. 1. sec. 9; 1 Bishop C. L. 4J2.

2 103 Mass. 71 (1SG7).

296 PRESUMPTIVE EVIDENCE. [rULE 69.

judo-ment, " because it does not appear in the body of the
complaint who was the complainant, and that such defect is
apparent, and is in matter of substance and not of form."
The motion was overruled, and the defendant alleged excep-
tions, which were sustained in the Supreme Court. Morton,
J., saying: *« The assault of which the defendant was con-
victed was committed in the immediate presence of her
husband. The presumption of law is, that she acted
under his coercion.^ It was the right of the defend-
ant to have this principle stated to the jury. The
counsel asked the court to instruct the jury ' that the
presumption was that she acted under the coercion and con-
trol of her husband, and should be acquitted.' If there
was evidence in the case to rebut the presumption in favor
of the defendant, the court was justified in refusing to in-
struct the jury that she should be acquitted ; but we think
that the first part of the instruction requested should have
been given. The instructions actually given would have
been accurate if the court had also instructed the jury as to
the presumption above stated, but by the refusal to do so
the defendant was deprived of the benefit of this presump-
tion as one of the elements proper for the consideration of
the jury in determining her criminal liability.

It is held in Arkansas that under the statute of that State
if a married woman commits a crime of any kind or degree
under the threats, commands, or by the coercion of her hus-
band, she can not be found guilty, but the coercion is not to
be presumed from his presence, but must be proved by cir-
cumstances. In Freel v. 8 tale, ^ Sally Freel was indicted for
and convicted of aiding and abetting her husband in the mur-
der of one Ortner. On appeal the Supreme Court said :
*' The plaintiff in error moved the court to instruct the jury
as follows: * If the jury believe from the evidence that the
act charged in the indictment was committed by the defend-
ant Sally Freel, in the presence of the defendant James M.

1 Commonwealth v. Gannon. 9" Mass. 547 ; Commonwealth v. Burk, U Gray, 437.

2 21 Ark. 212 (1800).

RULE GI).] PUESUMPTIONS FIIOM COURSE OF NATURE. 297

Frccl, unci the said James M. Frccl is and was her husband
at the time of its commission they must find the defendant
Sally Frcel, not guilty under the indictment.' Which the
court refused ; and tiio plaintiff in error then moved the
court to instruct the jury as follows: ' That if they believed
from the evidence that she was the wife of the said defend-
ant James M. Freel, and the said act charircd in tlie indict-
ment was done or committed by the defendant Sail}' Free!,
in the presence of the said defendant James M. Freel, the
presumption of law is that the said act was done and
committed by her under and on account of the coercion
of the said defendant James M. Freel, and that this pre-
sumption continues until it is rebutted by evidence on
the part of the State showing that she did not so act
under such coercion.' Which the court refused; and of
its own motion instructed the jury as follows : ' That
under the indictment herein, they can find the defendant
guilty of murder in the first degree, or murder in the second
degree, or manslaughter. That the fact that the offense
charged in the indictment was committed by the defendant
in the presence of the said defendant James M. Freel, the
husband of the defendant, affords her no lefjal excuse or
justification for its commission.' Marriage does not de-
prive the wife of the legal capacity of committing crime.
Where she voluntary commits crime of any grade, the mere
presence of her husband does not excuse her. It is said in
some of the English books, that if she commit treason,
murder, or robbery, by the coercion of her husband, the
law, on account of the odiousness and dangerous con-
sequences of these crimes, wnll not excuse hcr.^ ]Mr.
Bishop thinks the bettor opinion is that the coercion
of tlie husband will exempt her from criminal liability for
any offense whatever."^ It is agreed by the authorities,
that, by the common law, the coercion of the husband is
not to be presumed from his presence in cases of treason.

1 Arch. dim. Pica. & Ev. C; Roscoo Cr. Ev. 95G; Ilale P. C. 44.
* Bishop Cr. L., sec. 277; but see Wharton, 53.

298 PEESmiPTIVE EVIDENCE. [RULE CO.

murder, and robbery, though as to other felonies and mis-
demeanors, perhaps, the rule is otherwise.^ Our statute
dechires that: 'Married women acting under the threats,
commands, or coercion of their husbands, shall not be guilty
of any crime or misdemeanor, if it appears from all the
facts and circumstances of the case, that violence, threats,
commands, or coercion were used.^ The first instruction
moved by the plaintiff in error was properly refused by
the court, because it assumes the law to be, in effect, that
the wife can not commit a crime in the presence of her hus-
band — or at least that his presence exempts her from crim-
inal liability. The second was also properly refused,
because it assumes that the coercion of the husband is to
be presumed from his presence, in a case of murder (the
instruction does not discriminate between offenses), which
is contrary to the common-law rule and not warranted by
our statute. The charge given by the court, of its own
motion, to the effect that the presence of the husband was
no legal excuse or justification for the commission of the
offense by the wife, was substantially correct. If the
common-law rule was that the coercion of the husband was
no excuse for the wife in treason, murder, and robbery, as
stated by the English authors above cited (but contro-
verted by Mr. Bi.shop), then the effect of our statute was
to extend the rule, and make the coercion of the husband
an excuse for the wife in * any crime or misdemeanor ;'
but there is nothing in the statute from which it may be
inferred that the Legislature meant to extend the rule fur-
ther, and make the presence of the husband raise the pre-
sumption of compulsion in all cases ; on the contrary, the
excuse of the wife is made to depend, by the terms of the
statute, upon its appearing, 'from all the facts and cir-
cumstances of the case,' that coercion was used."

In case III. it was said: ** The general rule of the com-
mon law is that the husband is liable for the torts of his

1 Id., and note to Ilalc 46, Stokes & Ing. Ed.
^ Dig. Ch. 51, sec. 1 of Part I.

RULE G9.] rUESUMPTIONS FROM COURSE OF NATURE. 2'J9

wife.^ But the question here is as to their joint liabilit}'.
AVhcn the tort or crime is committed by the wife alone, and
■without the presence, or direction of her husband, she may
beheld liable, civilly and criminally. In such cases, the civil
action must be against both the husband and the wife.'' But
if committed in his presence and by his direction, he alone is
liable.^ The jor/majfac/e presumption is, that the wife acted
under coercion, if the husband was actually present. This
presumption arises as well in civil suits for torts, as in
criminal cases. ^ If nothing appears but the fact that the
wrong was done whilst they were both together, the jury
should be instructed to acquit the wife. Such j)resumptiou
is but prima facie, and may be rebutted by the facts
proved, showing that the wife was the instigator or more
active party, or that the husband, although present, was
incapable of coercion, — or that the wife was the stronger
of the two. ^ The coercion must be at the time of the act
done, and then the law out of tenderness refers it, prima
facie, to the coercion of the husband.® The presumption is
one of the compensations, or oflsets, which the old common
law gave for the benefit and protection of the wife, for its
stern and unyielding doctrines in relation to the superior
marital rights of the husband, by which the rights, — the
personal property and legal existence of the wife, — are
nearly all lost or merged in her baron or lord. As was
forcibly said by Mr. Chief Justice Emery, in 8late v. Bur-
lingam.e,'' * the whole theory of the common law is a slavish
one compared even with the civil law. The merging of the
wife's name in that of her husband is emblematic of the
fate of all her legal rights. The torch of Hymen serves
but to light the pile on which those rights are offered up.'

1 Hawks V. Ilamar, 5 Binn. 43.

* 2 Kent's Com. 149; Head r. Briscoe, 5 C. & P. 4S1 (24 E. C. L. 419) ; Keyworth
V. Hill, 3 n. & Aid. 6S5 (5 E. C. L. 422).

3 2 Kent's Com. 110.

* miliard on Torts, ch. 42.

6 Wharton's Am. Or. Law, book 1, sec. 73; 1 Ilale, 516.
« lb., sect. 74.
' 15 Maine, 106.

300 TRESUMPTIVE E\^DENCE. [rULE 69.

It "was a natural and logical result, as the founders of the
common law clearly saw that if the husband was to be
regarded as the head and sole representative of the union,
the wife should have the benefit of her legal nonentity,
when acting in presence of her husband, even if she appar-
ently was not an unwilling actor. Her misdemeanors and
trespasses were to be looked upon, not as arising from the
promptings of her own mind and will, but as the result of
the overpowering commands or coercion of him whom she
had promised to obey. How carefully the fathers studied
the first case in point, recorded in the history of man,
(Genesis, Chap. HI.), or some of the subsequently re-
ported cases, where to common observation the woman and
wife appears as the prime mover in wrong and mischief,
we can not know and need not discuss. But to meet the
actual facts of history and observation, the law has
engrafted the qualification on the rule, before stated, viz.,
that the prima facie presumption may be overcome by the
proof in the case, that, in fact, the wife was the originator,
dictator, and principal offender.^ When there are other
facts established, besides the presence of the husband, as to
the participation of the wife in originating and carrying on
the common purpose, it is a question for the jury to deter-
mine whether or not the presumption is overcome."

In case V. it was said : " It is not necessary to the decis-
ion of this case to hold that a married woman, living with
her husband, can not, under any circumstances, be regarded
as the head of the family. The only facts relied upon to
sustain the proposition that the appellee in this case was, at
the time in question, the head of a family, are that the res-
idence of the family was * on her own premises ;' that
' the property on the premises was her own sole and
separate property,' and that ' she had children by her former
husband residing with her.' These facts alone are surely
not sufiicicnt to show clearly that she was at the time, ' the

1 nilliard on Torts, ch. 42, sec. 1; Com. v. Lewis, 1 Mete. 153.

RULE G9.] PRESUMPTIONS FROM COURSE OF NATURE. 301

head of the famil}-,' especially when it is said in the same
statement that she -was at the time residing ' with her hus-
band.' Ordinarily, at least, when the wife lives with the
husband, he must be regarded as the head of the family.
If, in fact, he has not the control of the family, and is not
the head thereof, such fact must be shown by proof. The
inference that he is the head must be rebutted by proof, and
in a penal action that proof must clearly rebut such infer-
ence. It may well be that this man and his wife were living
upon her land, and that the personal property on the place
was her property, and that her children constituted a part
of the family, and yet the husband may have had the most
complete control of the family and of all the business trans-
acted upon the land. For aught that is here shown, he
may have been a man of wealth, and may have been sup-
porting his wife and her children in affluence. Again, it
is not shown by the statement that the constable had notice
that any anomalous relations existed in this family, constitut-
ing the wife the head of the family. Presumptions must
not be too freely indulged in penal actions."

Incase VIII. it was said: " It never was the intention of
the constitution (in giving the wife a separate estate), to
ignore the strong ties of domestic affection and mutual con-
fidence which spring from the relation or to interfere with
any presumptions based upon them. The whole doctrine
of advancements is founded upon these and like presump-
tions and they extend not only to the relation of husband
and wife, but also to mother and daughter, grandparents
and grandchildren, even under some circumstances to
father-in-law and son-in-law — indeed, to all the relations of
life that imply the existence of strong affection with an
obligation of a moral nature to love and protect. They
are based upon the laws of our being, and amount only
to this single common sense view that persons in these
relations who do favors have higher and tenderer mo-
tives than any expectation of pay. This is only a claim
for money advanced to buy a i)iece of laud for the wife

30-? PRESmiPTIVE EVIDENCE. [rULE 69.

and improve it. It was a good thing for a husband to
do, and may be supposed to have been done from a desire
to protect her against want. The law will not raise an
implied promise on her part to repay it. It w^ill be pre-
sumed to be a o;ift."

" The law respects the regular course of nature in every
way, and consequently in all cases, in so far as the course of
nature is known, all such facts as well in regard to the rev-
olution of the seasons as to animals and vegetables ; as the
mating of birds and their co-operation in raising their
young, the blooming time of roses and the like, are received
as being in themselves entirely trustworthy, or as facts from
which inferences as to the truth of other facts may be safely
drawn. In questions of bastardy the time of access being
proved, the known term of gestation, reckoning from the
time of birth, is always received as a most satisfactory kind
of presumptive evidence. So, too, in all the various ques-
tions in relation to the right of property, connected with a
continuance of 'life, facts, so far as they are known, in
regard to the probability, the expectation, and the average
duration of human life, have always been in like manner
admitted as evidence ; or as a ground from which presump-
tive evidence of the existence of other facts may be fairly
deduced, and there can be no doubt that the regular and
known course of nature in the formation of vegetables may
be as safely relied on as direct, or as presumptive evidence,
as in that of animals." ^

The presumption is that children under the age of twenty-
one years remain unemancipatcd, and that children above
that age are empancipated, until the contrary appears.^ So
the domicil of an infant is presumed to be that of the
mother.^

In a number of cases the English courts have acted on
the presumption that a woman beyond a certain age, is inca-

1 Patterson v. McCausland, 3 Bland. Ch. 70 (1830).

« J'itzwilliam v. Troy, 6 X. H. IfJG (183:5) ; Oxford v. Rumney. 3 N. H. 331.

2 Sprague v. Litherberry, 4 McLean, 442 (laiS).

RULE 70.] PIIESUMPTIOXS FROM COURSE OF NATURE. 303

pable of cliild bearing,^ No ca><c can be found in the
American courts in which such a presumption has been
given effect to. In LUt v. Rodney,'^ \t was laid down that
in the devoUition of estates, the hiw presumes the possibil-
ity of bearing children, even when a woman has passed the
age to which the ability to do so usually continues. So in a
number of English cases, the courts have refused to pre-
sume impossibility of issue on account of old age in the
cases both of women ^ and men.* In the Soutii, in slavery
times, a person of color was presumed to be a slave.*

RULE 70. — A person is presumed to do what it is his
interest to do, and not to act against his interest.^

Bhistrations.

I. An estate is devised to A. The law presumes that it is beneficial
to A., and that he accepts it. He may disclaim it, but to worli this, a
disclaimer must be proved.''

II. A conveyance of property is made to B. The presumption is that
B. accepts it.*

1 Levy V. Hodges, Jac. 585; Lyddon v. Ellison, 19 Beav. 505; Miles v. Knight, 12
Jur. 6C6; Dodd r. Wake, 5 DeG. & Sm. 226; Brandon r. Woodthoriic, 10 Dtav. 463;
Brown v. Pringle, 4 Uare, 124 ; Edwards v. Tuck, 23 Beav. 271 ; Hayncs r. Haynes,S5
L. J. Ch. 303; Davis r. Bush, 8 Jur. 1114; Davidson v. Kimiiton,L. R. 18 Cli. Div. 213;
Groves v. Groves, 12 W. K. 45; Widdow's Trusts, L. R. 11 Eq. 408; Milluer's Estate,
R. 14 Eq. 245; Payne v. Long, 19 Ves.STl.

2 83 Pa. St. 4S3 (1S77).

« Eraser r. Eraser, Jac. 586; Conduit v. Soane, 24 L. T. (N. s.) 6.56; Jec v. Audley,
1 Cox, 325; Overhill's Trusts, 17 Jur. 342; Reynolds v. Reynolds, 1 Dick. 374; Croxton
V. May, L. U. 9 Ch. Div. 388.

* Lushington v. Boldero, 15 Beav. 1 ; Trevor r. Trevor, 2 Myl. A K. 675; Alsop v.
Bi'.wtrell, Cro. Jac. 511; Lomax r. llolmdon, 2 Sir. 940, rirfe Mr. Stewart's note to
Apgar's Case, 37 N. J. Eq. 501 (1883).

"* Field r. Walker, 17 Ala. 80 (1849) ; Becton r. Ferguson. 22 Ala. 599 (1853).

0 Creps t'. Buird, 3 Ohio St. 277 (1S.")4) ; Clawsou r. Eichhaum, 2 Grant's Cas. 130
(18,5;>). A person's assent to a matter which is obviously for liis benefit may he pre-
sumed, but not whore it would be prejudicial to him. Uighain v. Stewart, 3S Mich.
513 (1S7S).

' Towson V. Ticknell, 3 B. & Aid. 31 (1819) ; Thompson r. Leach, 2 Salk. C18.

8 Bcnsley v. Atwill, 12 Cal. 231 (1859) ; Lady Superior r. McNamara, 3 Barb. Ch.
375; 49 Am. Dec. 184 (1S4S) ; Peavey v. Tilton, 18 N. IL 151; 45 Am. Dec. 365 (1816) ;
Merrills v. Swift, IS Conn. 207; 46 Am. Dec. 315 (1847); Thome r. San Francisco, 4
Cal. 169; Ilallock v. Bush, 2 Root (Conn.) 26; Maynard r. Maynard.lO Mass. 4.56;
Wheelwright f. Wheelright, 2 Mass. 447; Read r. Robinson, 6 W. & S. 329; Cliess r.
Cliess, 1 Pa. St. 32 ; Beers v. Broome, 4 Conn. 217; TIbballs v. Jacol)s, 31 Conn. 428;
Hedge v. Drew, 12 Pick. 141; Uugles v. Lawsou, 13 Johns. 285; Jackson v. Phipps, 12

304 PKESUJIPTIVE EVIDENCE. [rULE 70.

III. A charter has been granted to certain parties. The law pre-
sumes it to have been accepted.^

IV. A husband dies leaving a will in which he devises one-half of all
his property to his wife. The wife dies seven days afterward without
either waiving or accepting the provision, or claiming her dower. As
the provisions of the will arc more beneficial to her than her legal dower
the presumption is that she accepted them.^

v. It is shown that certain arrangements were made for a person's
benefit. The presumption is that the person assented to them.^

VI. A deed of assignment beneficial to creditors is executed by an
insolvent. The presumption is that they assent to it.*

VII. An act of the Legislature was passed reciting that B. was the
illegitimate child of A., changing B.'s surname to that of A. and legiti-
mizing him. A. afterwards malies a deed to B. of some laud as his child,
and in the new name. The presumption is that A. procured or assented
to the act of the Legislature.*

VIII. A widow is entitled to a dower or a child's portion in certain
land. She remains in possession without electing until her right of
dower is barred. The presumption is that she elected to take a child's
part, this being more beneficial to her."

IX. A. delivers a sum of money to B., a creditor of his. The pre-
sumption is that B. paj's a debt, not that he makes a loan or gilt.'

X. A debtor leaves a legacy to a creditor. This is presumed to be a
payment of the debt, and not a gift.®

XI. Property is given by parent to a child. This is presumed to be an
advancement, and not a glft.^

XII. A. hands a sum of money to B. The law wiU not presume that
this is a loan.i"

Johns. 421 ; Church v. Gilman, 15 Wend. 656; Jackson v. Boale, 20 Johns. 187; Renfo
V. naiTison, 10 Mo. 411; Mitchells. Kyan, 3 Ohio St. 377; Barns v. Hatch, 3 N. H. 304;
Guard v. Bradley, 7 Ind. 600 ; Brown v. Austin, 35 Barb. 341 ; Mallory v. StoUer, 6 Ala.
801; Herbert v. Herbert, Brecse, 282. But see, Hulick v. Scovil, 9 111. 159; Bennett
V. ^yalker, 23 HI. 97; Welch v. Sackett, 12 Wis. 243 (1860).

1 Kewton v. Cabery, 5 Oranch C. C. 632 (1840).

- Merrill v. Emery, 10 Pick. 507 (1830).

3 Treat v. Treat, 35 Conn. 210 (1868).

* Governor v. Campbell, 17 Ala. 566 (1850) ; Benning v. Nelson, 23 Ala. 801 (1853).

6 Thrower v. Wood, 50 Ga. 459 (1874).

6 Sewell V. Smith, 54 Ga. 567 (1875) ; Sloan v. Whitaker, .58 Ga. 319 (1877).

7 Welch V. Seaborn, 1 Slark. 474 (1816); Caryi?. Geirish,4E6p. 9 (1801); AuberttJ.
Walsh, 4 Taunt. 493 (1812).

8 Breton i7.Cope,l Beake, 43 (1791) ; Cloud v. Clinkinbeard, 8 B. Mon. 397; 48 Am.
Dec. 397 (1848). And see Zeiglcr v. Eckhert, 6 Pa. St. 13 ; 47 Am. Dec. 428 (1843).

" Autry V. Autry, 37 Ala. 618 ; Mitchell v. Mitchell, 8 Ala. 421 ; Butler v. Ins. Co. 14
Ala. 777; Merrill v. Rhodes, .37 Ala. 452; Clements v. Hood, 57 Ala. 462 (1876) ; Dill-
man V. Cox, 23 Ind. 440 (1864) ; Stevenson v. Martin, 11 Bush, 458 (187.5).

1'^ Gerdingv. Waiter, 29 Mo. 426 (1860). Butsee WliitCf.Sheldou,4Xev. 280 (1868.)

RULE 70.] rRESUMTTIOXB FKOM COURSE OF NATURE. 305

XIII. A. sends B., to -whom lie is not indebted, §5,000. The presump-
tion is that this is a loan and not a gift.^

XIV. In the absence of C. in a foreign country, F. sent to the wife of
C. a check for $500, wiiich was collected by her. The presumption is
that this was not a gift, but a loan to the wife on the credit of the hus-
band.»

XV. A., upon the settlement of accounts with his father, gave the
latter his note for $425. In an action upon this note by the representa-
tives of the father, A. produces the note canceled, but testifles that it had
not been paid. There is no presumption that it had been released by the
father.'

XVI. n. and D. bought certain land and executed a mortgage for the
purchase money. II. subsequently paid the debt, and took an assign-
ment of the mortgage. Another person subsequently obtains a judg-
ment against D. The presumption is that the mortgage is not merged
in the fee, as this would be against H.'s interest.*

XVII. A bargain in which the rights of A. are varied is made, A. not
being present. Tlie presumption is that A. did not consent to it.*

XVIII. A., as servant of B., sues B. for his wages. The fact that A.
remained in B.'s service during the time for which the wages are claimed
raises a presumption that he performed the service properly.®

Incase I. it was said: ** I think that an estate can not be
forced on a man. A devise, however, being prima facie for
the devisee's benefit, he is supposed to assent to it until he
does some act to show his dissent. The law presumes that
he will assent until the contrary is proved ; when the con-
trary, however, is proved it shows that he never did assent
to the devise, and consequently that the estate never was
in him." *^ Prima facie i'' said Abbott, C. J., "every
estate, whether given by will or otherwise, is supposed to
be beneficial to the party to whom it is given." And Bay-
ley, J., added : *' The law, indeed, presumes that the estate
devised will be beneficial to the devisee, and that he will
accept of it until there is proof to the contrary."

I Richardeon'9 Estate, 13 Phila. 241 (1370).

» Ficklin v. Carrington, 31 Gratt. '210 (1878).

s Grey r. Grej-, 47 N. Y. 552 (1872).

* Duncan v. Drury, 9 Pa. St. 332; 49 Am. Dec. 665 (1848).

8 Mc.Vulty r. Ilurd, 86 N. Y. 547 (1881).

e lioberts v, Brownrigg, 9 Ala. 106 (1846).

20

306 PRESmiPTIYE EVIDENCE. [rULE 70.

In case XV., it was said : " It has become a maxim in the
law that nemo donare facile prmsumuntur . To sustain the
judgment would reverse that maxim. There is nothing left
to stand upon but a gift, and that the law docs not pre-
sume. Irrespective of the possession of the note, there is
not a particle of evidence tending in the direction of this
being a gift."

In case XVI. it was said: "A mortgage is not, of course,
merged by coming into possession of the owner in f ee.^ It
depends generally upon the intention of the parties to the
arrangement accompanying the operation, either of assign-
ment or payment. An intent to prevent the merger will be
presumed whenever it is the interest of the party that the
incumbrance should not be sunk in the inheritance.^ Here
the intent of the mortgagor and mortgagee was quite appar-
ent that the security or incumbrance should be kept on foot,
because the mortgagee assigned it to the recovering mort-
gagor. It is also clearly the interest of the mortgagor that it
should not sink in the inheritance. If it should be so held an
incumbrancer would get part of the proceeds of the sale in
this case against equity, because at the time he procured his
incumbrance the mortgage was indisputably the oldest lien ;
and it continued so up till the payment of the money by
Hart. Why, then, should the judgment against Duncan,
the other mortgagor, who had really no equity in the land,
all the money having been paid by Hart, be held extin-
guished by Hart's payment of the money contrary to the
expressed intent of the parties, merely to take that much
out of his pocket in favor of one whose whole lien was sub-
ject to the lien of the mortgage? If he or anybody el.-e
had bid up the land to an amount exceeding the mortgage,
then he would have got his money."

In a Missouri case a suit was brought on a bond given
to the United States. There was no law authorizing an

1 Moore v. Harrisbnrg Bank, 8 Watts, 138.
« Eicharda v. Ayore, 1 W. & S. 483.

RULE 70.] PKESUMPTIONS FK03I COURSE OF NATURE. 307

officer of the United States to accept such a bond. It was
held that the acceptance of the bond by a proper officer
would nevertheless be presumed.^ The court said: "In
the multiplied transactions of the government of the United
States, in both the executive and judicial departments,
many cases occur in which it is deemed necessary and pru-
dent to take bonds, though there is no statute authorizing
it; * * * such bonds would stand upon the same
footings as the bonds in the cases of United States v. Taii-
gey;"^ United States v. Bradley;^ Postmaster- General v.
Itice;^ Postmaster -General v. N'orvell.^ In all these cases
the acceptance of the bonds was presumed, although there
was no law authoriziu": the officer to take them."

1 Barnes r. Webster, 16 Mo. 258; 57 Am. Dec. 232 (1852).

2 5 Pet. 115.

3 10 Pet. 343.
< Gilp. 561.

6 Gilp. 120.

CHAPTER XY.

THE PRESUMPTION OF PAYMENT AND THE DIS-
CHARGE OF OBLIGATIONS.

RULE 71. — Independently of a statute of limitations
or in tlio absence of one, after a lapse of twenty
years the law raises a presumption of tlie payment of
bonds (A), mortg^ages (B), legacies (C), taxes (D), judg-
ments (E), the due execution of a trust (F), and the
performance of a covenant (G).^

Even before the English statute of 34, William IV.,
which limited the time within which an action on a bond or
other specialty might be brought, the courts had established
the presumption that where payment of such an instrument
was not demanded for twenty years, and there was no proof
of payment of interest or any other circumstance to show
that it was still in force, payment or release would be pre-
sumed.^ This principle has since then become established
by the courts both of the United States and of England,
the period being fixed at twenty years. ^

1 Also the pajnment of debts generally is presumed from lapse of time. McLellan
V. Crofton, 6 Me. 307 (1830) ; Jefferson County v. Ferguson, 13 111. 33 (1S51) ; Taylor v.
Dagger, 66 AJa. 444 (18S0).

2 Oswald V. Leigh, 1 T. R. 270 (1786).

3 Central Bank v. Ileydorn, 48 N. Y. 26a (1872) ; Brock v. Savage, 31 Pa. St. 422
(18.58) ; Bellas v. Levan, 4 Watts, 205 (1835) ; Tilghman v. Fisher, 9 Id. 441 (1840) ;
Boyce v. Lake, 17 S. C. 481 (1832) ; Goodwyn v. Baldwin, 59 Ala. 127 (1877) ; Lyon v.
Adde, 63 Barb. 89 (1872) ; Jarvis v. Albro, 67 Me. 310 (1877) ; Olden v. Hubbard, 34
N.J. (Eq.) 85 (1881); Boon v. Pierpont, 28 Id. (1877); Downs v. Sooy, Id. 55 (1877);
Kay V. Pearce, 84 N. C. 485 (1881) ; Kodman v. Hoops, 1 Dall. 85 (1784) ; Ilopkirk v.
Page, 2 Brock. 20 (1822); Ludlow v. Van Camp, 6 N. J. Eq. 113; 11 Am. Dec. 529
(1823) ; and see Levy v. Merrill, 52 How. Pr. 360 (1876) ; Pattie v. Wilson, 25 Kas. 326
(1881) ; Cowie v. Fisher, 45 Mifh. 629 (1881) ; Lyon v. Odell, 65 N. T. 28 (1875) ; Willing-
ham V. Chick, 14 S. C. 93 (1880). "A forbearance lor the period of twenty years,
when unexplained, is a fact from which payment of a sum demanded ought to be
presumed. To cite cases in support of a proposition so firmly established is quite
euperfluous." Hosmer, C. J., in Lynde v. Dennison, 3 Conn. 391 (1820).

(308 )

IIULE 71.] THE TRESUMPTIUX OF PAYilENT. 309

"These presumptions to be drawn by tlie courts in the
case of stulo demands," says Chancellor Kent, "are
founded in substantial justice and the clearest policy. If
the party having knowledge of his rights will sit still and
without asserting them permit persons to act, as if they did
not exist, and to acquire interests and to consider them-
selves as owners of the property, there is no reason why
the presumption should not be raised. It is, therefore, well
settled that the presumption that a demand has been satis-
fied prevails as much in this court as it does at law." ^

"Every presumption," says the Master of the Rolls in
Pickering v. Stamford,"^ " that can fairly be made, shall
be made against a stale demand. It may arise from the
acts of the parties, or the very forbearance to make the
demand affords a presumption either that the claimant was
conscious it was satisfied or intended to relinquish it." ^

" The rule of presumption, when traced to its foundation,
is a rule of convenience and policy, the result of a neces-
sary regard to the peace and security of society. No per-
son ought to be permitted to lie by whilst transactions can
be fairly investigated and justly determined, until time has
involved them in uncertainty and obscurity, and then ask
for an inquiry. Justice can not be satisfactorily done when
parties and witnesses are dead, vouchers lost or thrown
away, and a new generation has appeared on the stage of
life, unacquainted with the aS'airs of a past age, and often
regardless of them. Papers which our predecessors have
carefully preserved are often thrown aside or scattered as
useless by their successors. It has been truly said, that if
families were compelled to preserve them they would accu-
mulate to a burthensome extent. Hence, statutes of limi-
tations have been enacted in all civilized communities, and
in cases not within them, prescription or presumption is

1 Chancellor Kent in Giles r. Barcmorc, 5 Johns. Ch. 645 (1821).
s 2Ve8. jr. 583 (1705).

s And sec Reeves v. Brymer, 6 Vos. jr. 511 (ISCl) ; Motz v. Morean, 13 Moore P. C.
C. 376 (1859).

310 PRESUMPTIVE EVIDENCE. [rULE 71.

called in as an indispensable auxiliar}'- to the administration
of justice. Courts of equity consider it mischievous to
encourage claims founded on transactions that took place at
a remote period. It therefore grants no relief after a great
len^-th of time. In a word, the most solemn muniments
are presumed to exist in order to support long possession ;
the most solemn of human obligations lose their binding
efficacy and are presumed to be discharged after a lapse of
many years." ^

In B uchannan Y. Rowland, ^th.Q early cases are reviewed
by Kirkpatrick, C. J.: " "What, then," says he, *' is the
ground of this presumption of payment, arising from length
of time, to what cases does it apply, and how far is it con-
clusive ? It is said that by the common law there was no
stated or fixed time for the bringing of actions. The law
was always open ; satisfaction was never j)7-eswwze(^. In the
progress of society, however, it was soon found necessary
to supply this deficiency by statute, and to compel men to
prosecute their rights within a reasonable time, or to aban-
don them forever. Hence, we find, from the reign of
Henry I., a succession of statutes, narrowing the latitude of
the common law in this respect, and limiting the time in
which actions might be brought, to shorter and shorter
periods, until they had brought it down, in most cases, to
twenty-one years only, and in many to a still shorter time.
The reasons upon which these statutes are founded, Sir
William Blackstone tells us, are : First, because the law will
not disturb an actual possesssion in favor of a claim which
has been suffered to lie dormant for a long and unreason-
able time ; nam vigilantihiis et non dormientibus suhserviunt
leges; secondly, because \\> presumes that he who has, for a
long time, had the undisturbed possession of either goods
or lands, however wrongfully obtained at first, has either
procured a lawful title or made satisfaction to the injured,
otherwise he would have sooner sued ; and thirdly, because

1 Foulk V. Brown, 2 Watts, 216 (1834). ^ 6 N. J. (L.) 721 (1820).

RULE 71.] THE rRESUMPTION OF PAYilENT. 311

it judges that such limitations tend to the prevention of
innumerable perjuries, the preservation of the public tran-
quility, and what it values perhaps more than all, the sup-
pression of contention and strife among men, nam j^^'ccipue
interest reipiihlkoe ut finis sit litiam. Taking tlieso great
fundamental principles, then, thus recognized by successive
statutes, as the basis of their conduct, the courts of justice
build up, upon them, a system, extending beyond the letter
of the statutes themselves. They were professedly founded,
in part. Sir William Blackstone says, upon the presumption
that lawful titles may have been acquired under possessions
tortiously taken, and that satisfactions may have been made
upon contracts, in their origin indisputably valid, but that
the evidence thereof, after Ijnng so long, may be destroyed
by the all-devouring tooth of time. The judges only
extended this principle to cases, which, though not within
the letter, were yet within the reason and spirit of the law.
Lord Hale, I think, is said to be the first who adventured
upon this course ; he was followed by Holt, and then came
Lord Mansfield with a still bolder step ; the judges in
chancery, in the meantime, keeping equal pace, if not now
going beyond the courts of law. In the case of King v.
S (evens, one of the corporators of St. Ives,^ Lord Mans-
field said there was no direct and express limitation when
a bond should be supposed to be satisfied; the general
rule was, indeed, about twenty years, but it had been left
to a jury upon eighteen. So, though there was no stat-
ute nor fixed rule of limitation, as to the length of time
which should quiet the possessors of these oflices, yet they
ought not to be disturbed after a great length of time.
In the "Winchelsea Cases, ^ the court said they had unani-
mously resolved, that after twenty years undisturbed pos-
session of a corporate franchise, they would grant no rule
upon a corporator to show by what right he held. This
resolution was founded, not on any express provision

1 Burr. 4337. 2 r.ur. 1692.

312 PKESUSIPTITE EYIDEXCE. [kULE 71.

of the law, but in analogy to the rules established in
other cases. By the statutes of limitation, they said, writs
of formedon and entry into lands, were confined to
twenty years; writs of errors were confined to twenty
years ; courts of equity did not allow the redemption
of mortgages, after twenty years ; bills of review had been
generally disallowed after twenty years ; bonds which had
lain dormant should be presumed to be paid after twenty
years; ejectments required proof of possession, within
twenty years; and so, leaning upon these cases, they
extended the doctrine, by analogy, without positive statute,
to the case of a corporate franchise, then depending before
them. The same ground has been taken, and the same
course pursued by succeeding judges, down till this day; so
that nothing can be better settled than that they do extend
the principles of these statutes, by analogy only, to cases
within the reason and spirit, though not within the letter
of them. And upon this analogy, this presumption of pay-
ment, as appears by Lord Mansfield's reasoning, is wholly
founded.

" We have carried the limitation of actions, still further
than they have done in EngLand. We have carried it so far
that I do not now recollect a single case, unless, indeed, it be
the one before us, in which an action can be maintained
after twenty years. After that time, latent titles to land,
unaccompanied with possession, are supposed to be extinct
mortgages to be redeemed, judgments to be satisfied, bonds
to be paid. Our act for the limitation of actions, extends
expressly to all these. Now, if in England, the writs of
formedon^ and entry into lands, and of writs of error, and
actions of ejectment, created by statute, would be extended
by analogy, to corporate franchises, and be made the ground
of presumptive payment of bonds and mortgages, certainly
it can not bo going too far to say, that when our act of
assembly has declared that no scire facias shall issue, or
action of debt be maintained, upon a judgment unless within

RULE 71.] THE TRESUMITIOX OF TAY^IENT. 313

twenty years from its date, and that, too, upon the pre-
sumption that it is already paid, I say it will certainly not bo
going too far, to extend this presumption by analogy, to the
case of an execution upon such Judgment, -which has, indeed,
been levied, but has lain dormant, now, for thirty years and
more. But, suppose these points to be gained, that the
principle of the statute is to be extended by analogy, and
that the presumption of payment built upon it, is ai)plica-
ble to the case before us, in the same extent, and upon the
same reason, as to a bond; still it is to be inquired how far
that presumption is conclusive, and whether the verdict of a
jury can be set aside, and a now trial granted, because they
have found against it. It is said by the plaintiff, that the
presumption, at most, is but evidence upon the plea of pay-
ment; that it may be strcngtcned or invalidated by con-
comitant circumstances, and that the jury, therefore, are
to judge of its strength or weakness, and to pass upon it
like other evidence. And though this may be a just view
of it in a certain sense, yet, upon a careful examination,
perhaps, we shall find it rather specious than solid, so far as
it respects the present case. It is true that this presump-
tion may be cither strengthened or invalidated ; nay, indeed,
it may be ■wholly overcome by circumstances ; and when
such circumstances are mere matters in pais to be proved
by witnesses, the jury must judge both of the truth of their
existence and of their operation and effect upon the pre-
sumption. But still, when the length of time, wholly unac-
counted for, and the presumption, therefore, stands in its
full force, it is conclusive; and the conclusion to be drawn
from it is a conclusion of law, to be declared by the court,
always and universally the same ; and though the jury must
pass upon the issue of solvit vel noiiy yet the law thus to be
declared to them, is the evidence by which they are to be
governed; they are not by vain conjecture or imaginary
reasonings to break down the rules of property, established
by law, and declared by the court. In the case of Hum-

314 PKESUilTTIVE EVIDENCE. [rULE 71.

ph rrj/fi V . Humphreys,'^ Lord Chancellor Talbot says , that after
twenty years, and no interest paid during that time, a bond
shall be presumed to be satisfied, unless something appears
to answer for that length of time. And after a verdict at
law, he granted an injunction to stay proceedings thereupon.
So,- on a demurrer to a bill to redeem a mortgage, u'here
it appeared by the bilU that the mortgagees had been in
]")osscssion more than twenty years, the court held that the
defendant need not even plead the length of time, but might
demur; and that no redemption could be allowed; for that
as twenty years would bar an entry or ejectment, so it
should bar the right of redemption also ; making the pre-
sumption, not only a bar, but a legal bar, conclusive upon a
demurrer. In the case of Searle v. Barrington^^ the de-
fendant had pleaded payment, and rested upon the legal pre-
sumption arising from length of time, the bond being of
more than twenty years' standing. The plaintiff offered as
evidence, to encounter this presumption, an indorsement
upon the bond of interest paid within twenty years, but this
was overruled by the court, and a nonsuit ordered. In the
reconsideration of this case at bar, the court, indeed, held
that the indorsement on the bond, of interest paid, was law-
ful evidence, and ought to have been submitted to the jury to
determine whether it was made fairly and bona fide^ or
merely to evade the presumption; but there was no pre-
tense that the presumption arising from length of time was
not in itself a good bar, or that standing alone it was
not a good ground of nonsuit, or that it ought to have
been left to the jury to determine its effect. So in an
anonymous case,* Holt, C. J., says, if a bond be of twenty
years' standing, and no demand proved thereon, or good
cause shown for so long forbearance, upon solvit ad diem^
I wnll intend it paid. From those cases, without going mto
a multitude of others, I think the conclusion irresistible.

1 3 p. Wms. 395. 3 Str. 813.

a Same book, 286. < 6 Mod. 22.

RULE 71,] THE rRESUMPTION OF rAYllENT.

315

not only th.it twenty years affords a presumption of pay-
ment, but that that presumption, standing alone, is conclu-
sive in the law, and is so to be declared by the court ; and not
to bo left to the jury to determine its effect. It is true that
Buller, in a later case in the King's Bench, seems to growl
at this doctrine a little, and to express himself, as if ho
thought the jury the solo judges of the effect. Whether he
was led into this, from having given a hasty opinion at the
nisijpriusj or from what other cause soever, if he meant to
maintain that doctrine, he was in an error. It is contrary
to the whole course of decision upon that subject, as well
as to the very nature of the thing itself; for w^hatever the
law presumes, it belongs to the court to declare, and not to
the jury."

Illustrations.

I. By statute certain bonds are given by an heir at law which are a
lien on the lands descending to him. After twenty years the presumption
(they not being within the limitation law) is that they are paid.i

II. A suit is brought in 1834 on a bond made in 1800, a paymenthaving
been made on It in 1801. The presumption is that it is paid.^

In case I. it was said: ** Bonds given by the heir entitled
to elect under the act to direct descents are by the terms of
the act of assembly made liens on the lands for the pur-
chase of which they are given until paid; and therefore
they are supposed not to be within the statute of limita-
tions. But though not within these statutes, like mort-
gages, they are liable to presumptions of payment; and it
is thought to bo quite clear that when the circumstances
are such as would induce the court to presume the payment
of a mortgage, the same presumption would be made with
reference to these bonds. It is, says Chancellor Kent, a

1 Boyd V. Harris, 2 Md. Ch. 210 (1850).

2 Dciaiicy v. Uobinson, 2 Whart. 503 (1837) ; Dennieton r. McKeen, 3 McLean, 053
(IWO) ; and ecc Kirkpatrlck r. Lanfri'hier, 1 Crar.ch C. C. 85 (1802) ; Lowe v. Stowell.
4 Joucs (L.), 235 (1856) ; Kogcrs v. Bishop, 5 Blackf. 108 (1SJ9).

ol() PKESTOIPTIVE EVIDENCE. [rULE 71.

■svell settled rule, both at law and in equity, that a mortgage
is not evidence of a subsisting debt, if the mortgagee never
entered and there has been no interest paid or demanded
for twenty years. These facts alone authorize and require
the presumption of payment."

B.

I. A. claims certain land under a mortgage due in October, 1794, and
made by B. It appears that B.'s heirs were in 1819 in possession of the
land. The presumption is that the mortgage is paid.^

In case I. it was said: " In furtherance of justice, and
the more effectually to secure the rights of the parties in
the investigation of questions in issue, and especially in

1 Howland v. ShurtlefF, 2 Mete. 26 (1940) ; Jarvis v. Albro, 67 Me. 310 (1877) ; Trash
r. White, 3 Brown Ch. 201 (1791) and notes; Christophers. Sparks, 2 Jac. & W. 235
(1820); Gibson v. Fletcher, 1 Ch. Cas. 59; Leman n. Newnham.l Ves. sr. 51 (1747);
Toplis V. Baker, 2 Cox Ch. 113 (1789) ; Jackson v. Wood, 12 Johns. 242 (1815) ; Living-
ston f. Livingston, 4 Johns. Ch. 287 (1820) ; Wanmaker v. Van Buskirk, 1 Saxt. Ch.
685; 23 Am. Dec. 748 (1832). In Tripe v. Marcy, 39 N. H. 449, the court said, that the
presumption that when the mortgagor is permitted to retain possession of the land
for twenty years without interruption, the mortgage debt has been paid or had no
valid existence is established on great authority, citing Trash v. White, 3 Brown Ch,
2SD; Christophers. Sparks, 2 Jac. & W. 10; Hughes v. Edmonds, 9 Wheat. 497; Dexter
V. Arnold, 3 Sum. 152; Dnnham v. Minard, 4 Paige, 443; Bacon v. Mclntyre, 8 Mete.
86; Heyer v. Pruyne, 4 Paige, 443; Higginson v. Mein, 4 Crauch, 415; Collins v.
Tenney, 7 Johns. 279; Jackson v. Davis, 5 Cow. 130. " But we are not prepared to
hold that this presumption arises short of twenty years from the time the mortgage
debt becomes due, otherwise we might be asked to presume a debt paid before the
stipulated time of payment had arrived. This presumption arises from the long
delay to enforce payment; but surely no such delay can be charged until the time
has arrived when the creditor is entitled to demand it. In this respect the presump-
tion accords with the general provision of our limitation laws which limit suits to
the time prescribed after the cause of action has accrued. Upon these principles
no presumption of payment exists in this case. When the mortgagee is in posses-
sion, the right of the mortgagor will be barred in twenty years from the entry after
breach of condition. So if the mortgagee suffer- the mortgager to remain in posses-
sion twenty years after breach of condition, payment is presumed. In both cases
the time is reckoned from the breach of condition. In the first the mortgagee is
usually entitled to the possession upon the execution of the mortgage, and until the
debt becomes due the mortgagor can not by payment entitle himself to enter. He
can of course then do nothing to interfere with the mortgagee's possession, and
until the debt has become due, no presumption can arise against him." Tripe v.
Marcy, supra; Evans v. Huff, 5 N. J. (Eq.) 300 (1840). No such presumption of
payment can arise against a mortgagee or his assigns in possession, when the mort-
gagor became insolvent and died before the debt became due, and when his vendee
of the equity of redemption also became insolvent before the maturity of the debt
removed from the Stale, and never afterwards returned. Brobst v. Brock, 10 Wall.
519 (1870).

RULE 71.] THE rRESUMPTIOX OF PAYMENT. 317

ancient transactions the law calls to its aid the doctrine of
presumption under which the jury arc authorized to find the
existence of certain facts as to which there is no direct
evidence, but which are, under the rules of law, to be reason-
ably inferred from certain other facts which are well estab-
lished by the evidence in the case. Tho^^c ])rcsumptions
when they arise from lapse of time and forbearance to
assert claims rest upon the principle so strongly pervading
the course of men's actions in relation to their rights that
individuals will appropriate to their own use and subject to
their own control that to which they have the legal right,
and that an abandonment for a great length of time of a
legal interest without any attempt to enforce it, furnishes rea-
sonable ground for the inference that the party has in some
way parted with his interest or discharged his claim. This
principle, so reasonable in itself, operates beneficially in
quieting controverted titles and closing stale demands, and
also protects individuals from gross injustice, arising from
loss of evidence as to ancient transactions. A question has
been sometimes raised whether the doctrine of presumption
arising from the lapse of time and total neglect to take any
measure to enforce a claim, could properly be applied to
the case of a mortgage of real estate ; and in some of the
Eno-lish cases the doctrine was advanced that the common-
law presumption applicable to bonds, judgments, etc., aris-
ing from a delay of twenty years to enforce the same did
not apply in the case of a mortgage, as in such cases the
legal estate was in the mortgagee and the mortgagor was a
mere tenant at will, and his possession was therefore the
possession of the mortgagee. But this doctrine was repudi-
ated by Lord Thurlow in the case of Trash v. WJdte,^ and
by the Master of the Rolls in Christopher \. Sparks;^ in very
stron<r lann-uajje ; and the cases of debts secured by mort-
gages are placed on the same footing with other demands,
and held liable to be defeated by the same presumptions

1 3 Brown Ch. 289. - ' J^c. & W. 223.

318 PRESUMPTIVE EVIDENCE. [rULE 70.

arising from lapse of time and laches of the mortgagee.
In our own court the principle was applied in the case of
Inches v. Leonard^ under circumstances, however, of greater
delay, than in the present case in asserting the claim of the
mortgagee. It was a case of a mortgage of forty years'
standing, where there had been no possession by the mort-
gagee, and no attempt in the meantime to enforce the mort-
gage ; and the court held that the plaintiff could not maintain
the action. The doctrine that where the mortfrajxce has
never entered under his mortgage and no interest has been
l^aid for twenty years on the same, these circumstances
authorize the presumption in fact that the mortgage has
been discharged by payment or otherwise is one of frequent
application." ^

In Wanmaker v. Van Buskirk,^ it was said : " From all
these decisions there can be no doubt that a presumption
of payment may be raised by lapse of time against a mort-
gagee, and the better opinion would seem to be that such
presumption would attach at the end of twenty years by
analogy to the rule relating to bonds. Chancellor Kent, in
the case cited, appears to favor this opinion, and to incline
with the Master of the Rolls in the case of Boehm v. Wood
to put the mortgagor and mortgagee when in possession in
the same plight. The rule of presumption has long been
adopted in favor of the mortgagee ; so that when he has
been in possession twenty years, the mortgagor will not be
let in to redeem. I see no objection to the adoption of a
rule by this court that a lapse of twenty years, without pay-
ment or demand of principal or interest, shall raise a pre-
sumption of payment in the case of a mortgage. Our
statute bars the recovery of the debt after sixteen years ;
and after twenty years the right of entry is gone, and the
mortgage is no longer a subsisting title ; why should the

1 13 Mass. 379.

2 Collins V. Terry, 7 Johns. 278; Jackson v. Wood, 12 Id. 242; Jactson v. Pratt, 10
Id. ."381 ; Giles v. liarremorc, 5 Johns. Ch. 552.

3 1 Saxt. Ch. (N. J.) 6tS5 (1832).

EULE 71.] THE TKESUMPTION OF TAYMENT. 319

mortgage still be valid in a court of equity. Cut I am not
called on to establish such a principle or to say that the
English doctrine is strictly applicable here. Admitting it
to be so, and this case to be within it, it docs not determine
the right of the parties. It raises a presumption that the
mort2ao;e is satisfied, and I am willino: to admit that such

DO ' O

presumption is raised in favor of the pa3'racnt of this mort-
gage, by the lapse of twenty-three years without payment
or demand of interest. It is, nevertheless, but a presump-
tion. Standing alone, without explanation, it would pre-
vail, and be tantamount to absolute proof, as well in equity
as at law ; and this not because of any actual bchcf that
the debt has been paid, but because it is right that posses-
sion should be quieted. But the presumption may be
rebutted by a variety of circumstances."

C.

I. It is proved that a testator long since dead left considerable per-
sonal property. The presumption arises that legacies charged upon his
real and personal estate have been paid.^

II. B. by his will left a legacy to F. appointing C. his executor. The
legacy was to be paid in 1803. In 1829 F. brought a suit against C. for
the legacy. The presumption is that it was paid.*

'♦ Legacies," it was said in case I., *' not being within
the statute of limitations, fall within the rule of presump-
tion. After a lapse of twenty years bonds and other
specialties, merchants' accounts, legacies, mortgages, judg-
ments, and indeed all evidences of debt excepted out of the
statute are presumed to be paid. The court will not
encourage the laches and indolence of parties, but will pre-
sume after a great length of time some compensation or
release to have been made."

1 Fnhrtnan t-. London, 13 S. & R. 380; 15 Am. Dec. 60S (1825) ; Hayes v. WhUall, 13
N. J. (Kq.) 211 (1S61).

2 Foulk V. Brown, 2 Watts, 212 (1S34) ; Bentley'a Appeal, 99 Pa. St. 504 (lSS2)i
Bonner v. Young, 6S Ala. 35 (1S80).

320 PRESUMPTIVE EVIDENCE. [rULE 71.

D.

I. It appears that from 1807 to 1813, H. was an inhabitant of the town
of S., and was assessed for taxes. In a suit brought in 18-iO, the presump-
tion is that these taxes are paid.^

II. An assessment was made in 1837 on the property of A. The pre-
sumption is, in 18G2, that it has been paid.^

"Taxes," it was said in case I., "can not have any
higher character than debts due by specialty and of
record. As to these a presumption of payment arises
after the lapse of twenty years if there is no evidence
to repel it, and to show that the debt is still unsatisfied.
The assessment is in the nature of a judgment, and the
warrant for the collection operates like an execution.
There is no reason, therefore, why the same principle
should not be applied in both cases."

E.

I. A suit is brought on a judgment recovered more than twenty years
before. The presumption is that it has been paid.^

II. A judgment rendered in 1842 is sued on in 18C8. The presumption
is that it is paid.*

F.

I. A man conveyed in 1826 his interest in some land to a trustee for
the payment of certain creditors and the balance to his wife. In 1847

1 Hopkinton t>. Springfield, 12 N. H. 328 (1841).

2 Fisher v. Mayor of New York, 6 Hun, 64 (1875) ; Hopkington v. Springfield, 12
N. H. 328 (1841) ; Dalton v. Bethlehem, 20 N. H. 505 (18J6).

3 Bird V. Inslee, 23 N. J. (Eq.) 363 (1873) ; Kinsler v. Holmes, 2 S. C. 483 (1871) ;
Miller v. Smith, 16 Wend. 425 (1836) ; Inches v. Leonard, 12 Mass. 379 (1815) ; Barned
V. Barned, 21 N. J. (Eq.) 245 (1870). From less than twenty years the presumption
does not arise. Daby v. Erickson, 45 N. Y. 786 (1871) ; Lesley v. Nones, 7 S. & R. 410
(1821).

< Chapman «. Loomis, 36 Conn. 450 (1770), and see Wills v. Gibson, 7 Pa. St. 154
(18-17) ; Ilolman's Appeal, 24 Pa. St. 174 (1854) ; Rhodes v. Turner, 21 Ala. 210; Bar-
nett V. Tarrancc, 26 Ala. 463 ; Blackwell v. Blackwell, 33 Ala. 57 ; McCartney v. Bone,
40 Ala. 533 ; Ragland v. Morton, 41 Ala. 344 ; Worlcy v. High, 40 Ala. 171 ; Yarnell v.
Moore, 3 Cold. 173 (18CG) ; Bender v. Montgomei-y, 8 Lea, 586 (1881).

RULE 71.] THE TRESU-MrTION OF I'AYMEXT. 321

the law will presume that the debts have bceu paid and the trust
executed.^

G.

I. A covenant to deliver property i'i made by A. to B. After a lapss
of time the presumption of oerformauce arises.'

In case I. it was said: " It is contended tliat the presump-
tion is applicable only to the case of an obligation for the
payment of money, and not to a covenant for the delivery
of property, or the performance of other duty. It is be-
lieved that the reported cases are generally of the former
description; but the principle upon which the presumption
is founded applies as strongly, if not more so, to those of
the latter kind. Payment of a bond for money after a
lapse of twenty years, where there has been no demand on
one side, or acknowledgment on the other, and no circum-
stance is shown which could have hindered, or impeded the
recovery, is presumed, because the existence of the debt
under those circumstances, is incompatible with the ordinary
motives and the general course of human conduct. The
presumption of payment, in such a case, arises, therefore,
from what is commonly observed to happen in the trans-
actions between man and man. Now, as a covenant for
the payment of property may in general be easily per-
formed by the one party, and in proportion to the value,
must be of the same importance to the other, to have it
performed, as if it were a bond for the payment of money,
the lapse of time must afford a strong reason to infer a
performance in the one case as it does to infer a payment
in the other; and, accordingly, experience shows that
there is as great a degree of punctuality commonly ob-

1 Drysrtale'8 Appeal, U Pa. St. 531 (1S50) ; Webb v. Dean, 21 Id. 31 (1S53) ; Pro-
vost V. Gratz, G Wheat. 481 (1S45) ; Coleinau r. Lane, 26 Ga. 615 (1S58). And that an
estate was duly distributed. Hooper v. Howell, 52 Ga. 322 (1874). And, after
twenty year.->, that an administrator was qualillcd. Battles f. Ilolley, 0 Me. 145
(18'20); or has made a settlement. Austin v. Jordan, 35 Ala. 642 (1860); Gregg f.
Bethea, 6 P.irt. (Ala.) 9 (18;;7).

a Phillips V. Morrison, 3 Bibb, 105; 6 Am. Dec. 038 (1813).

21

322 PRESUMITIVE EVIDENCE. [rULE 72.

served in the performance of such a contract, as there is
in the payment of a debt due by bond."

11UL.E 72. — The presumption tinder Rule 71 does not
arise from lapse of time alone short of twenty years ;
but a shorter time, in connection with other circum-
stances, may raise a presumption of fact that payment
has heen made.

'< When we hear of less than twenty years being left to
the jury," it was said in a Pennsylvania case, " it must be
understood to have been in connection with other circum-
stances." ^ This seems to be well settled.^

"A legal presumption of payment of a bond or covenant
given for the payment of money does not arise from mere
lapse of time where the bond or covenant has not been due
for twenty years before commencement of suit or procecd-
ino"s for the recovery of the amount thereby due and
payable. If a shorter period, even a single day less than
twent years, has elapsed, the presumption of satisfaction
from mere lapse of time does not arise. While the mere
lapse of twenty years without explanatory circumstances
affords a presumption of law that the debt is paid, even
though it be due by specialty, still payment may be inferred
by the jury from circumstances with the lapse of a shorter
period of time than twenty years. When an action is
brought on a bond or covenant for the payment of money,

1 Henderson v. Lewis, 9 S. & R. 384 (1823) ; Ross v. McJunkin, 14 Id. 364 (1286) ;
Boss V. Darby, 4 Munf. (Va.) 428 (1815).

2 Brubakur v. Taylor 76 Pa. St. 83 (1874) ; and see Groves v. Steel, 3 La. Ann.
280 (1848) ; Briggs' Appeal, 93 Pa. St. 485 (1880) ; Sadler v. Kennedy, 11 W. Va. 187
(1877) ; Colwell v. Pi^indle, Id. 307 (1877) ; Daby v. Erickson, 45 N. Y. 786 (1871) ; Clark
V. Hopkins, 7 Johns. 556 (ISll) ; Stockton v. Johnson, 6 B. Mon. 408 (1846). In Didlake
v. Roljb, 1 Woods, 682, Hill, J., said: "Aside from the statute of limitations, * * *
the rule is well settled that after a debt has remained due and payal)le for sixteen
years, the law holds such lapse of time aa prima facie evidence of payment, which
prima facie evidence may be rebutted by proof of a subsequent promise to pay, or
Bome reasons why suit was not brought; and after the lajise of twenty years the
presumption of payment becomes conclusive." It would be hard to say where the
ju'lgc found such a rule announced as well settled. It is loose language of this kind
in judicial opinions that occasions so much confusion and uncertainty in the law.

RULE 72.] THE PRESUMPTION OF PAYMENT. 323

if twenty years elapse between ttic time of its becoming
due and of the institution of the action or proceeding, the
defendant may without pleading the statute of limitations
rely upon presumption of payment ; and upon issue joined
on plea of payment, payment may be inferred by the
court or jury from circumstances coupled with a lapse
of a shorter period than twenty years. ^

In CoJsdl V. Budd^^ljOvCL Ellenborough said: "After a
lapse of twenty years a bond will be presumed to be satis-
fied ; but there must either be a lapse of twenty years, or
less time, coupled with some circumstance to strengthen
the presumption. Here, if it has been proved that the
parties had accounted together after the money became
payable, it might have been inferred that it was included
in the settlement; but as there is no evidence of this, and
as twenty years have not elapsed since the bond was for-
feited, it can not be considered as discharged."

IllustratiOTis.

I. K. gave C. in 1837 a sealed note payable in sixty days. After both
K. and C. A%ere dead an action was brought (in 1852) on this note. C.
had a running account at K.'s store from 1836 to 1839, and payments
were made to amounts more than the note durinc: this time. K. resided
near C. until his death. These facts raise the presumption that the note
was paid.*

II. An action is brought on a bond payable in installments. Nineteen
years and ten months have elapsed since the last installment became due,
and another installment had become payable more than twenty years
before the suit was brought. The judge instructed the jury that as to
the last installment they may, and as to the other they must, presume
payment.*

III. A judgment is recovered in 1857. In 1874 (sixteen years), a scire
facias is issued to revive it. The defendant swears that he expected to
prove that it had been fully paid out of the proceeds of a sheriff's sale
of his land, in the proceeds of which the plaintiff had participated; that

1 Colwell V. Prindle, 19 W. Va. 640 (1SS2) ; citing Sadler v. Kennedy, 11 Id. 1S7;
Perkins r. Il.iwkins, 9 Gratt. 656; Goldhawk v. Duanc, 2 Waoh. C. C. 323.
= lC:iun'.27 (1S07).

3 King r. Coulter, 2 Grant's Gas. 77 (1853).
< Miller r. Evans. 2 Cranch C. C. 72 (1813).

324 PRESUMPTIVE EVIDEXCE. [UULE 72.

he can not state the payments, being unable after search to obtain the
sheriff's docket. The presumption of payment arises. ^

IV. A transcript of a justice of the peace is filed in a Superior Court
nineteen years after the judgment was rendered. The justice is not
called nor the docket produced, and there is nothing to show whether an
execution has ever been issued. The presumption arises of payment.^

V. A debt on a bond due in eighteen years and a half Is sued on. It
appears that during this time the creditor was a poor man and the debtor
a rich one. The presumption of payment arises.^

VI. R. sues G. on a note payable in 18G0; the action is brought in
1872. On several occasions after the note matured R. came to G., wanting
to sell him some stock in a company, on the ground that he needed the
money, and after much persuasion G. purchased the stock. Nothing was
said about the note. The presumption arises that the note was paid.*

In case I. it was said; "It was fifteen years, four
months and twenty-five days after the sealed note of the
plaintiff 's testator matured before this action was instituted
for its recovery. No legal presumption of payment, such
as unrebutted the court would be bound to declare as a
conclusion of law, arose in that time, for the authorities
all agree in fixing twenty years, from analogy to the
Eufjli.-^h statute of limitations concerninoj real estate, as
the period necessary to such a presumption. But the
question is whether the time that did elapse was competent
in connection with such circumstances as were offered to go
to the jury as ground for their presuming payment of the
note. * * * Xhe competency of such evidence does
not depend on a particular period of years, though its
effect will be proportioned to their number. The pre-
sumption strengthens as the time approaches to twenty
years, and the circumstances needed to establish it may be
measured by a diminishing scale. The further the time
stops short of twenty years the more cogent and decisive
must be the circumstances relied on. Just as the further
we advance bevond twenty years we require more per-

1 Moore v. Smith, 81 Pa. St. 183 (1876).

2 Diamonrl v. Tobias, 12 Pa. St. 312 (1849).
2 Hughes V. Hughes, 54 Pa. St. 241 (1867).
< Gamier v. Ilenner, 51 lad. 374 (1873).

RULE 72.] THE rKESUMPTION OF PAYMENT. 325

su.asive circumstances to rebut the legal presumption.
Twenty years assumed as the point for that presumption,
the scale is reversed by which wo measure tho circum-
stances that tend to establish or countervail it. In both
instances it is for the jury to apply tho proofs under the
direction of the court. If evidence bo oifcred which, in the
judgment of the court, will, in connection with the lapse
of time, reasonably tend to convince the jury that the
sealed debt has been paid short of twenty years, or that it
has not been paid, notwithstanding that period, it is the
duty of the court to receive it, and to submit it to the jury
with such instruction as shall enable them to estimate it at
what it is reall}' Avorth. The point to be attained is moral
conviction of a fact, and whilst it is not to be founded on
evidence insufficient to convince reasonable men, we are
not to exact mathematical certainty, nor to expect more
than moral demonstration."

"More than sixteen years," it was said in case HI.,
♦' had elapsed. A legal presumption of payment does not
indeed arise short of twenty years, yet it has been often
held that a less period, with persuasive circumstances tend-
ing to support it, may be submitted to a jury as a ground
for a presumption of fact."

Incase IV. it was said: "The rule is well established
that where the period is short of twenty years the pre-
sumption of payment must be aided by other circum-
satnces beyond a mere lapse of time. But exactl}' what
these circumstances may bo never has been nor never will
be defined by the law. There must be some circumstances,
and where there are any it is safe to leave them to the jury.
Here there were several circumstances. No certificate was
given by the justice that he had issued execution, to which
there was a return of nuJhi bona; and this was important,
as the record still remained before the justice, who might
receive the money or collect it by execution. And there
was the pregnant circumstance that the plaintiff produced
hearsay evidence that the transcript was genuine, and that

326 PRESUMPTIVE EVIDENCE. • [rULE 72.

the justice had said that the doclvet was lost. The justice
Avas not produced himself to show that the docket was
lost and that search was made for it. This would have
been unnecessary if the transcript had been entered in any
reasonable time ; but after the lapse of nineteen years and
and seven months it would seem to be a reasonable duty on
the part of the plaintiff, and the absence of which might
fairly be taken into consideration. * * * Qn the
whole, we think the judge did not err in submitting all
the circumstances in evidence to the jury, from which, if
they were satisfied, they might infer or presume payment."

In case V. it was said : " That a complete legal presump-
tion of payment of a bond or other instrument of like
nature does not arise short of twenty years is well settled ;
but it has also been well settled that a shorter period,
aided by circumstances which contribute to strengthen the
presumption of payment by lapse of time, may be sub-
mitted to a jury as grounds for the presumption of the
fact of payment. Slight circumstances may be given in
evidence for that purpose in proportion as the presumption
strengthens by the lapse of time; but still they must be
such as aid the presumption arising from time. They must
be, as it is said, persuasive that the time would not have been
suffered to elapse had the debt remained unpaid. * * *
To aid the presumption of payment from the lapse of time
the defendants offered evidence of what they called the
needy circumstances of the obligee and the easy and sol-
vent circumstances of the obligor. No doubt * * *
evidence to prove this is entirely, competent."

In case VI. the court said: *' The circumstance was of
such a nature as tended strongly to support the theory tlnit
the note had been paid. The conduct of R. on that occa-
sion was wholly inconsistent with the idea that the note
was unpaid. He was pressed for money, and if the
amount of the note was then due him and his partner
from G. it is hardly possible that he would not then have
demanded its payment."

RULE 73,] THE PRESUMPTION OF PAYMENT. 327

RULE 73. — A statute of limitations prohibits the action

after tlie legal period, but the presuuiption of law

arising from lapse of time may be rebutted^ (A).

And the term fixed by the statute of limitations can

not be shortened by lapse of time alone (B).

After twenty years the presumption of payment arises,
unless there arc circumstances to account for the dchiy, and
if there are no such circumstances it becomes a presump-
tion of law, and the question should not be submitted to
the jury. " If there had been any circumstances, any-
thing but the lapse of time, to charge the jury on, that
should have been left to the jury ; *l3ut where there was
none the presumption of law on the fact is that the judg-
ment w^as satisfied. The court did no more, and if they had
done less they would have committed an error. On the
twenty years unexplained there was nothing to leave to the
jury; they had no belief to exercise on it; it is because
there are no means of belief or disbelief the presumption
of fact arises ; the presumption holds the place of jjarticu-
lar and undivided belief. It prevail-s because the presump-
tion of law is that tlie obligor in that Ions; time has lost his
receipts and vouchers, or the witnesses who could prove the
payment might be dead. The jury might not have believed ;
this court might not believe the fact of payment, but that
specific belief is not necessary. For wise purposes the law
has raised this general presumption. The laying down any
other rule would be destroying all legal presumption. The
position of the court below is justified by the opinions of
all the judges in England in GrantivicJce v. /Sampson,'^ that
*' the judges have bound it down as an irrevocable rule that
if there be no demand for money due on a bond for twenty
years they will direct a jur}^ to find it satisfied from the pre-
sumption arising from length of time.' " ^

1 Lyon V. Guild, 5 Ucisk. 175 (1871) ; Thorpe r. Corwin, 20 N. J. (L.) 311 (1S44).

2 2 Atk. 154.

3 Cope r. Uumphreys, 14 S. & U. 21 (1S2J) ; Webb r. Dean, 21 Pa. St. SI (1853).

328 PRESUMPTIVE EVIDENCE. [rULE 73.

Illust7'atio7is.

I. A. in 1836 gives B. a bond payable in 1838. In 18G0 B. brings suit
on the bond. The presumption is that it is paid. But it appears that in
1841 A. stated to B. that he did not intend ever to pay the bond, as B.
had talien so much from their father. This rebuts the presumption. A
statute provides that no action shall be brought on a specialty debt after
twenty years unless the debtor during or after that time has made a new
promise to pay the debt. The action against A. can not be maintained,
notwithstanding his aclinowledgeraent.i

In case I. it was said : " That presumption ■which the law
raises after a lapse of twenty years that a bond or specialty
has been paid is in its nature essentially different from the
bar interposed by the statute of limitations to the recovery
of a simple contract debt. The latter is a prohibition of
the action, the former prima facie obliterates the debt.
The bar is removed by nothing less than a new promise to
pay, or an acknowledgment consistent with such a promise.
The presumption is rebutted, or, to speak more accurately,
does not arise where there is affirmative proof beyond that
furnished by the specialty itself, that the debt has not been
paid, or where there are circumstances that sufficiently
account for the delay of the creditor. The statutory bar is
not removed without a new promise or its equivalent,
because suit on the old contract is prohibited, and the debtor
can only be liable therefore on the contract expressly made
by the new promise or implied from an acknowledgment of
continued indebtedness, the old debt being the considera-
tion for the new engagement. This is the logic of the mat-
ter, though it is true the pleadings have not been moulded
accordingly. We still declare on the old debt, and give the
new promise in evidence; but, notwithstanding this incon-
gruity, the liability which the law enforces arises out of the
new contract. * * * The statute of limitations is a
bar whether the debt is paid or not. Not so where suit is
brought on a sealed instrument. The fact of indebtedness

1 Eeed v. Reed, 46 Pa. St. 239 (1863).

I

KULE 73.] THE TRESU^IPTION OF PAYMENT.

329

is then in controversy, and the legal presumption of pay-
ment from lapse of time is nothing more than a transfer of
the onus of proof from the debtor to the creditor. Within
twenty years the law presumes that the debt has remained
unpaid, and throws the burden of proving payment upon
the debtor. After twenty years the creditor is bound to
show by something else besides his bond tliat the debt has
not been paid, because the presumption raises only aj^riJiia
facie case against him. It must be borne in mind that the
presumption from lapse of time is not that there is no con-
tract existing between the parties. If it were, proof of a
new contract might be necessary. It is only an inference
that the debtor has done something to discharge the debt,
to wit, that he has made payment. Hence it is rebutted by
simple proof that payment has not been made, and the facts
being established, whether they are sufficient to rebut it is
a question for the court and not for the jury. The pre-
sumption is one drawn by the law itself from a given state
of facts, and whether it exists or not is -necessarily for the
court."

The character of the creditor for strictness and closeness
in the collection of his debts is relevant on the presumption
of payment by lapse of time.'^ For a like reason in a
Pennsylvania case it is said: " While on the one hand the
party seeking to recover a demand may introduce any cir-
cumstance, however slight, having a tendency in the least
degree to defeat the presumption (of payment), so he who
relies on it may strengthen and support it by any fact which
legally and naturally has that effect. In the present case
the heirs of a man are seeking indirectly to recover a claim
due more than thirty years before suit brought. To show
that this man in his life-time and during the progress of
these thirty years was in needy circumstances and pressed
by his creditors in various suits for large sums of money
which ended in the recovery of judgments and executions

1 Leiper t-. Erwiu, 5 Yerg. 97 (1833) ; Kilpatrick v. Brashaer, 10 Uci^k. 372 (1371).

330 PRESUMPTIVE EVIDENCE. [rULE 73.

against him, was but calling in aid of the legal presumption,
the strong natural inference that one so harassed by his
creflitors and apparently in want of money for the payment
of his debts, would not have permitted his debtor to a large
amount to escape for so long a time a demand of payment
by suit. * * * But it is said the record of these judg-
ments should not have been received, because it appeared
all of them had been satisfied. But though this circum-
stance may have weakened the effect their introduction was
intended to produce, it certainly did not altogether destroy
it."i

B.

1. J^ mortgage given by A. to B. falls due in July, 1819, Proceedings
to foreclose it are commenced in June, 1839, In a subsequent action to
recover possession defendant asks that it shall be submitted to the jury
whether from lapse of time payment should not be presumed to have
been made before its foreclosure. A statute of the State provides that
"after the expiration of twenty years from the time the right of action
shall accrue upon any sealed instrument by the payment of money, such
right shall be presumed to have been extinguished by payment." No
presumption can arise from mere lapse of time short of twenty years. ^

" We take it," said the court in Grafton Bank\. Doe^
*' to be well settled that courts arc never at liberty to pre-
sume payment from mere lapse of time in any period less
than that which is fixed by the statute of limitations. To
hold otherwise would virtually be a repeal of the statute.
No doubt lapse of time, connected with other circumstances,
and evidence tending to prove payment, may legitimately
aid in establishing the fact." But if besides the lapse of
time there are other circumstances showing that payment
has been made the jury may presume payment.*

Presumption of payment of a bond can not be raised by
a lapse of less than the statutory time alone ; in connection
with other circumstances alone it may. In Henderson v.

1 Levers v. Van Buskirk, 4 Pa. St. 314 (1846.)

2 In};rahamr. Baldwin, 9 N. Y. 45 (1853).
8 10 Vt.4(i7 (1847).

* Milledge «;.Ciardner,33Ga. 397 (1863) ; Mayor of Kingston v. Horner, 1 Cowp. 102.

KULE 73.] THE I'KESUMrTIUX OF rAYMH.XT. 331

Leicis,^ judgment had been recovered on a bond which
Ijecanic duo eighteen years and three months Ijcfore suit was
brought ; during this time there had been indorsed on it a
credit of a year's interest and a small part of the principal.
On appeal the court said: " The rule with respect to the
presumption to be drawn from lapse of time is derived by
analogy from the English statute of limitations concerning
writs of entry into land, and the statute of limitations con-
cerning writs of error ; and it is adopted by courts of law
and by courts of equity; by the former not only in the
case of a stale claim on a bond, but in the case of a peace-
able possession of a franchise or incorporeal right ; and by
the latter in the case of a bill by a mortgager to redeem,
and in the case of a bill of review. Our act of assembly
restrains the commencement of actions for recovering the
possession of lands to twenty-one years from the time the
right of entry first accrued; but the rule, as styled in anal-
ogy to the English statute, the limitation in which is only
twenty years, was here adopted, before our act was passed;
and it was not afterwards worth while to alter it merely for
the sake of preserving the analogy. But the rule is in the
nature of a statute of limitations, furnishing not indeed a
legal bar, but a presumption of facts, and although less
than conclusive, yet priina facie evidence of it, and there-
fore sufficient of itself to cast the burden of countervailing
evidence on the opposite party. When less than twenty
years has intervened, no legal presumption arises, and the
case not being within the rule is determined on all circum-
stances; among which, the actual lapse of time, as it is of
a greater or a less extent, will have a greater or a less
operation. All this is so clearly stated by Lord Mansfield,
in the Winclidsea Causes,^ as to leave no doubt of the
oriiiin and nature of the rule. In the case of a debt
accruing by reason of a specialty, it was necessary for the
sake of convenience and repose to establish some certain

1 9 S. & R. 370 (U Am. Dec. 733) (ISiO). ■ i BuiT. 19G2.

332 PKESUMPTI^^: evidence. [rule 73.

period after which payment should be presumed from lapse
of time alone ; and that period was, in analogy to the
statute of limitations, fixed at twenty years. But it is to be
observed, there is an obvious distinction between length of
time sufiicient in itself to raise a legal presumption of the
kind which I have mentioned, and length of time which,
although insufficient for that purpose may, nevertheless,
in connection with other circumstances, fairly enter into
the estimate of the proof to be derived from the whole evi-
dence. The rule is applicable only to the first, because no
legal presumption of the fact can be obtained from the sec-
ond, and stabitiir presumptioni, donee prohetur in contra-
rium can not be predicated of it; it is a matter exclusively
for the consideration of the jury. A want of attention to
this has, I apprehend, given rise to the loose dicta of Lord
IMansfield and other judges of the length of time necessary
to found a presumption of payment, being about twenty
years, and of cases having been left to the jury where it
was but eighteen. To deprive the rule of fixed limit would,
besides rendering its application in most cases difficult and
uncertain, change its very nature, and destroy all analogy
to the statutes of limitations from which it was derived. If
eighteen years be left to the jury as sufficient in one case,
why may not seventeen, or any less number, be left to
them as sufficient in another? But the presumption is not
subject to the discretion of the jury; they are bound,
where it operates at all, to adopt it as satisfactory proof
till the contrary be made out ; and hence, when we hear of
less than twenty years being left to the jury, it must b3
understood to have been in connection with other circum-
stances, and not as making out the defendant's case in the
first instance, but as going for just as much as the jury
might, under all the circumstances, estimate it to be worth.
In the case before us there was not a lapse of time sufficient
to authorize a presumption of payment, and as there was
nothing in aid of the time which actually elapsed, I am of
opinion the cause was properly put to the jury."

RULE 74,] THE PUESU3IPT10X OF PAYMENT. 333

IIULE 74. — The presumption of payment may be re-
butted under Rule 73 by showing (at any time during
tlie period whicli creates the presumption) an acknowl-
edgment of the debt by the d<'btor ( A) ; or a payment
of part of it (B), or a known or notorious insolv-
ency (C) or incapacitj' (D) of the debtor; or by evi-
dence of the relation (E), situation (F), or intention
(G) of the parties ; or by other circumstances explan-
atory of the delay (H).

In Hillary v. Waller,^ the chancellor saitl: *' Then as to
a presumption of title. First as to a bond taken, and no
interest paid for twenty years ; nay, within twenty years,
as Lord Mansfield has said ; but upon twenty years the pre-
sumption is that it has been paid, and the presumption Mill
bold unless it can be repelled ; unless insolvency or a state
approaching it can be shown, or that the party was a near
relation, or the absence of the party having the right to the
money, or something which repels the presumption that a
man is always ready to enjoy Mhat is his own."

Illustrations.

I. A. gives B. a bond for the payment of §300 in 1817. An action is
brought on it in 18-45. The presumption that it is paid is rebutted by
proof that in 1837 A., in the presence of a witness, acknowledged tliat it
was still due.'

II. C. brings suit against D. on a bond payable over twenty years,
before action. D. during this time, and within twenty years, admitted
that it was due, but said he had a defense to it. There is no presump-
tion that it was paid.'

III. F. sues G. on a bond more than twenty years after it was due.
But during this time G. has twice stated that he would not pay it, as F.

1 12 Ves. 2fi7 (ISOC).

2 Eby V. Eby, 5 Pa. St. 4.To (1S46) ; Bissell r. J.iiidon, 16 Ohio St. 49S (1S6G). And a
demand proved to Ii.tvc Lieen niiide on the debtor by the creditor rebuts tlie presump-
tion. Shields V. rringle, 2 Eibb, 387 (ISll) ; Waumakcr v. Vau Buskirk, 1 Saxt. Ch.
(N.J.) CSo.

3 Stout V. Levan, 3 Pa. St. 236 (1S46).

334 rEESUMPTms evidence. [rule 74.

hn.d obtained more tliau be from their fatlier. Tliis rebuts tlie presump-
tion of payment. 1

IV. C. gives a mortgage on his laud to II. in 1854. In 1874 H. dies,
leaving the mortgage to his daughter M. lu 1879 M. asks C. for an
acknowledgment that the mortgage, on which nothing had ever been paid,
was a valid security, to which C. agrees, making a memorandum to this
effect on the mortgage. M. subsequently assigns the mortgage to E., who
sends it to C. to get an admission of tlie genuineness of his signature.
C. keeps the mortgage, and afterward states that it is lost. These facts
rebut the presumption of payment.^

Ill case I. it was said : " The legal presumption of pay-
ment which the law allows at the expiration of twenty years
after the debt becomes due is an act of tenderness toward
the debtor which is sustained by the absence of evidence,
and like other presumptions, must yield and give way before
any circumstances and facts on which the mind can rest
with satisfaction by which it is rebutted or repelled. It has
not the power or effect of a positive statutory enactment of
limitation or oblivion which extinfjuishes the original de-
mand, and requires a new promise to pay or its equivalent.
The mind must be free to admit the presumption, and if the
exhibition of facts or circumstances interdict and forbid
the conclusions, the protection is removed. * * * There
could be no doubt, whatever, that an acknowledgment of
the debt before the efflux of twenty years excluded the
legal presumption of payment. The question raised and
argued was as to the competency of an acknowledgment
after the expiration of twenty years from the time the bond
became due. The court did not err in their instruction to
the jury. The burden of proof lies on the plaintiff; and
if he satisfies the jury by proper evidence that the defend.
ant, after the exj5iration of twenty years, admitted the exist-
ence of the debt, it would be converting legal presumption
into credulity to instruct a jury that thoy were authorized
to presume payment against positive evidence. The legal

' Reed v. Reed, 46 Pa. St. 239 (1863).

* ilurphy V. Coates, 33 N. J. (Eq.) 424 (1881).

KULE 74.] THE niESUJrPTIOX OF TAYMEXT.

335

presumption of payment would be changed into a legal and
peremptory bar, contrary to all authority."

In case II. it was said: «' The suit was not brought
within twenty j'cars from the date of the bond and the debt
parable. Twenty years' delay unaccounted for pays the
debt. * * * This payment is by operation of law.
After that time, if not accounted for, the debt is presumed
to be paid. This presumption as a bar is conclusive of its
payment unless it is rebutted by countervailing proof.
This presumption may be overcome by proofs of various
kinds of facts and circumstances. Payment of money
in part discharge of the present existing debt; an acknowl-
edgment that the debt is still unpaid and due will rebut
this presumption of payment. It is not reasonable to pre-
sume a debt paid which the debtor says was not paid."

" It would be absurd," said the coui-t in case III., *' for
the law to presume in the case of such admission that it had
been paid. All presumptions are in accordance with what
is usual, not against it. True, the defendant added to his
admissions the expression of a purpose not to pay, giving
as a reason not that he had paid, but that the plaintiff had
obtained more than he had under the will of their common
father. This might be important if it was necessary to
show that a new obligation had been assumed, but it only
strengthens, if possible, the evidence that the debt remained
unjiaid."

*' But the presumption of payment," it was said in
case IV., "which arises in regard to mortgages from
lapse of time, without payment of interest or demand
made, is only a presumption, and it is one which in;iy be
rebutted. In this case C. has acknowledged both verball}'
and in writing that neither principal nor interest has been
paid."

But the fact that the debtor had during the twenty years
said to a stranger that he would not p:iy the debt (a legacy)
because the creditor was rich enough without it was held
insufficient. ""When a person," said the court, " in con-

336 PRESUMPTIVE EVIDENCE. [rULE 74.

versation with a stranger respecting the chiira of another,
says he will not pay it, there is not the same reason for
inferring recognition that exists when the creditor requests
and its debtor refuses paj^ment. In the latter case not to
deny is to admit. Besides the debt is claimed. But it does
not concern the stranger whether the claim is existing or
has been paid. He has no right to ask payment." ^

B.

I. T., II. and S. sign a bond payable in 1880. Thie presumption in 1881
is that it is paid. But it appears that in 1868 T. became bankrupt, and
his assignee paid T.'s share of the obligation. This rebuts the presump-
tion which had arisen in favor of H. and S.^

C.

I. A judgment is entered against L. in the j'ear 1818 for over one
thousand dollars. The presumption in 1846 is that it is paid. It is
shown that many judgments and executions were issued against him after
that, and that from 1820 to the present time he was insolvent and unable
to pay his debts. This rebuts the presumption of payment. ^

II. "While A. and B. lived in "Virginia, A. gives B. a bond payable in
1811. In 1812 A. removes to North Carolina and then to Mississippi, where
he lives till he dies in 1819. He is during this time in most destitute cir-
cumstances except for about eighteen months at one time, when he is
in possession and appears to be the owner of considerable property. In
an action brought on the bond in 1837 the presumption of paj-ment is
rebutted by his insolvency. And the fact of insolvency is not affected by
the interval of solvency of which the creditor could not have known.*

III. The presumption of the paj^ment of a bond being rebutted by
proof of the insolvency of the obligor during all the time, It appears that
he had a reversionary interest in certain shares which did not vest in him
until a short time before action brought, and of which the creditor was
ignorant. This does not affect the rebuttal. ^

1 Bentley's Appeal, 99 Pa. St. 500 (18S2).

- Belo V. Spach, 85 N. C. 192 (1881) ; IJamlin v. namlin, 3 Jones (Eq.) 191. So as
to the payment of interest. Shields v. Pringle, 2 Bibb, 387 (1811). But the evidence
of a joint obligor of a bond that he had not paid it is not admissible to repel the
presumption arising from lapse of time. Rowland v. Windley, 86 N. C. 36 1882).

8 Farmers' Bank v. Leonard, 4 IlaiT. (Del.) 537 (1848) ; McClellan v. Crofton, 6
Me. 334 (1830) ; Fladong v. Winter, 19 Ves. 197 (1812) ; Wynne v. Waring, 1 Term Rep.
270; Kilpatrick v. Brashaer, lOHcisk. 372 (1873) ; Ilopkirk v. Page, 2 Brock. 20 (1822).

* McKinder v. Littlejohn, 4 Ired. (L.) 198 (1843).

' ilcKinder v. Littlejohn, 1 Ired. (L.) 66 (1810).

RULE 71.] THE PRESUMPTION OF PAYMENT.

337

IV. The issuance and return of an execution nuUa bona is a circum-
stance rcl)Utting the presuiupliou of the payment of a judfjiuent from
lapse of time.'

In case I. it was said: '♦ It is a well established rule of
law that where a debt due by specialty has not been
demanded by the plaintiff or acknowledged or recognized
by the defendant for twenty years, and nothing is shown to
account for the delay, the debt shall be presumed to have
been fully paid and satisfied. This rule applies not only to
bonds, but to mortgages, judgments, recognizances, decrees,
and other debts of record. If the presumption is not
repelled by sufficient legal evidence, it becomes absolute
and conclusive, and the jury are bound to render a verdict
for the defendant, although they may individually believe
that the debt has not been paid. The rule is founded on
the common experience of the conduct of men in relation
to the transaction of business ; and was intended for the
security and repose of society, by discountenancing suits
for stale demands and discouraging the laches and negli-
gence of parties in dela} ing to prosecute their claims for an
unreasonable length of time when they had the means and
opportunity of enforcing them. The rule also was intended
for the protection of the debtor whose receipts or vouchers
may perhaps be lost, or witnesses be dead or removed; or
the true state of the transactions be otherwise obscured by
lapse of time. It is better for the peace and repose of
society and the ends of justice that the presumption arising
from lapse of time should be adhered to, and not be easily
rebutted ; although in many cases it may be contrary to the
actual truth of the case. Although this rule is well estab-
lished, it is equally well settled that in all cases the pre-
sumption of payment arising from lapse of time may be
repelled by countervailing evidence which satisfies the
minds of a jury that the debt is still due and unpaid. The
evidence for this purpose must consist (1) of an uncondi-

1 Black r. Carpenter, 3 Baxt. 350 (1374).

338 PRESmiPTIVE EVIDEIJCE. [RULE 74.

tional and unqualified acknowledgment or admission, cither
express or implied, on the part of the defendant witliin
twenty years of the justness of the claim, and that it is
still due ; or (2) a payment on account of either the prin-
cipal or interest, either of which is an implied recognition
of the debt; or (3) the situation, condition, or circum-
stances of the parties, such as the absence of the plaintiff
or the defendant in a foreign country, or the insolvency or
embarrassment of the plaintiff or the defendant. There is
no evidence either of the first or second description. But
the plaintiffs contend that there is sufficient and competent
evidence of the third descri[)tion to rebut the presumption
of payment in the present case. The question is presented
whether the poverty or insolvency of the defendant or a
state approaching or manifestly tending to insolvency is
admissible in evidence. The court are of opinion that it
is. The indigent circumstances of a creditor who holds
a bond and had the opportunity to collect it from the debtor
but makes no demand of payment, either of the principal
or interest, for a period of twenty years, afford strong pre-
sumptive evidence of payment or satisfaction. So on the
other hand and for the same reason the indigent circum-
stances of a debtor, his hopeless insolvency and inability to
pay his debts, are properly admissible in evidence for the
l^urpose of repelling presumption of payment or satisfac-
tion arising from lapse of time. Therefore, if the jury are
satisfied that the defendant was in such a state of indigence
or insolvency since the year 1820, that he was unable to
pay this judgment and other debts which had priority or
preference, the presumption of payment is repelled and the
verdict ought to be for the plaintiffs. Bat if the jury are
satisfied from the evidence in this case that the defendant,
although in indijrent or embarrassed circumstances since the
year 1820, had, during that period, either from visible prop-
erty or from other resources from which payment might
hnvG been coerced by the use of legal process either
against his property or his person, the means of paying

RULE 7-i.] THE PRESUMPTION' OF PAY.MEXT. 339

this judgment and other judgments having a priority of
lien upon any land or real property which he may have had,
and also all other debts, which by the use of legal diligence
could have been made to have a priority over this claim ; or
in other words, if it appears to the satisfaction of the jury
that this judgment might have been collected by the use of
legal process at any time since the year 1820, the presump-
tive bar from lapse of time is not removed, and in such
case the verdict ought to be for the defendant." The jury
found for the plaintiff.

In case II. it was said: " The distinction is material as
preventing the possession of propert}^ by the debtor for but
a short period from counteracting the effect of insolvency,
as a circumstance repelling the presumption of payment.
For if the debtor, living more than a thousand miles from
the creditor, and in a situation between which and the place
of the creditor's residence there was but little communica-
tion, should have had in possession property of value to
pay the debt but for a very short time, so that the jury
should think the creditor did not know of it and could not
get payment out of that property, it might be regarded
as being substantially a continued insolvency; especially
where, as here, the debtor seems barely to have had posses-
sion of property without its appearing how he got it and
whether he had paid for it."

In case III. it was said : " The presumption raised by a
forbearance for twenty years may be repelled by evidence
that the debtor had not the means or opportunity of pay-
ing. * * * I'Ijc circumstance relied on is not sufficient
to withdraw the present case from the operation of this
doctrine. * * * If it could be brought home to the
creditor that he knew of this interest in remainder, an
inference of negligence in forbearing for so many years
from any effort to subject it to his demand might be
raised against him, but as the intestate himself forebore
wholly, notwithstanding his necessities, from making any

o40 PEESCMPTIVE EVIDENCE. [RULE 74.

use of this interest, it might be that he was ignorant
thereof, and still more probable that these creditors knew
not of it."

In another case it was said: " The only true rule, in such
a case, is to require such a state of insolvency to be shown
to have existed during the entire ten years after the maturity
of the debt as will prove that the del)tor did not pay
because he coidd not, and nothing short of this will the
law permit to destroy its own inference arising from the
lapse of time. Besides this, in a case like the present the
presumption of payment, unlike that which is raised of
the death of a party from his being continually absent
and unheard of for seven years, is by law referred to a
particular period of time and has relation to the day
on which the debt became due." ^

D.

I. M. sues 0. on a sealed note due in ISiO. The suit is brought in 1861.
The presumption is that the note is paid. It is proved that between 1840
and I8G0, O. was insane. This rebuts the presumption. -

E.

I. A. mortgages his land to B. A. is a son-in-law of B. There is no
presumption, even after twenty years with no payment or demand of
interest, that this mortgage has been paid.*

II. B. mortgages his land to C. After a lapse of time in which the pre-
sumption of payment would arise the rule is different where it appears
that B. had died many years before, leaving a wife and children in poor
circumstances. *

III. A father left his son A. certain land having a doubtful title, with the
provision that should it be recovered from him at law, B. another son,
should pay him a certain sum from the estate. The land is taken from A.
by legal process in 1742. In 1788, A. sues B.'s executor for the sum.
The presumption is that B. has paid A. It appears, however, that, B.
"had amused A. until his death in 178."j, with promises of providing for

1 Grant v. Burgwvn, 84 N. C. 550 (18S1); Powell v. Brinkley, Busb. (N. 0.) 154
(lb52)

2 McLellan v. Crofton, 6 Me. S.W (1S;50).

3 Wanmaker v. Van Buskirk, 1 Saxt. Ch. (N. J.) 685 (1832).
* Id.

RULE 74.] THE PRESUMPTIOX OF TAYMENT. 341

him by his will," which he never did. The presumption of payment is
rebutted.'

In cases I. and II. it was said : *' Tlic very situation of
the parties is of itself sufficient to rebut the presumption.
The morterajjor was a near rehitive ; ho had married the
dauo-htcr of the mortfjafjee and had issue. The mortn^afiror
died many years ago, leaving his wife and children in pos-
session. They were not in a situation to pay either princi-
pal or interest. To have exacted the payment might have
brought distress upon those who depended upon this prop-
erty for support, and would have been harsh to say the
least of it. To suffer the mortgage to remain without
compelling payment was a reasonable indulgence, and ought
not to be set up now for the purpose of defeating the claim.
One ground for a presumption of payment growing out of
a lapse of time, is that a man is always ready to enjoy
what is his own. Whatever will repel this, will take away
the presumption of payment, and for this purpose it has
been held sufficient that the party was insolvent or a near
relation."

In case III. Marshall, who was then at the bar, argued
as follows : *' I admit that length of time which induces
a presumption that a claim has been satisfied will create an
equitable bar. But this presumption may be repelled by
testimony accounting for the delay, and in this case there
is a sufficient reason assigned and proved for the appellant's
not asserting his right at an earlier day. It appears that
the testator of the appellee had been long married without
having children; that he acknowledged his brother's lenity
in not coercing satisfaction of his claim, and promised to
make him an ample provision at his death." The court
agreed with this view of the case saying: "The judge
who pronounced the decree of reversal in this case seems
to have considered no other question, but the presumption
against the demand on account of its antiquity. It is un-

1 Eastice r. Gaskins, 1 Wash. (Va.) 1S8 (1793).

3 J: 2 PRESUMPTIVE EVIDENCE. [rULE 74.

doubtedly true in general thiit a right for a length of
time unaffected, is subject to a presumption of its having
been satisfied sufficiently strong to defeat it. But it is
equally true that this presumption may be opposed by cir-
cumstances accounting for the forbearance. In this case
we think a sufficient reason for the delay is assigned and
satisfactorily proved."

I. A bond, made bj' B. to A. in 1784, is sued on in 1815. The action is
brought in England where A. has always lived. But from 1792 to 1815 B.
has resided in America. The presumption of payment is rebutted.^

II. Kent of a house becomes due on December 25, 1794; but is not
sued for till 1816= One of the parties resides in England, the other in
America. The breaking out of the war between tne countries and the
distance between the parties, prevents the presumption of payment from
arising.^

III. During the period the time is running the parties live in the South ;
the war is flagrant and the courts are closed. This rebuts the presump-
tion.*

" The principle upon which the presumption of payment
arises from the lapse of time is a reasonable principle and
may be rebutted by any facts which destroy the reason of
the rule. That no presumption could arise during a state
of war, in which the plaintiif was an alien enemy, is too
clear to admit of doubt." *

G.

I. A bond payable on demand is executed in 1843. A suit is brought
on it in 18C7. The presumption is that it has been paid. It appears
that tliough payable on demand it was not the intention of either party
that it should be paid till a future time. The presumption is rebutted. »

1 Newman v. Newman, 1 Stark. 101 (1815) ; Helm v. Jones, 3 Dana, 88 (1835).

2 Bailey v. Jackson, 16 Johns 210; 8 Am. Dec. 309 (1819); Shields v. Pringle, 2
Bibb,3S7 (1811).

■> llopkirk V. Page, 2 Brock. 20 (1822) ; Gwyn v. Porter, 5 Heisk. 254 (1871); Jack-
son V. Pierce, 10 Johns. 415 (1813) ; Montgomery v. Brucre, 4 N. J. (L.) 2C0 (ISIS) ;
Ilalc f . Pack, 10 W. Va. 145 (1877) ; Thomas v. liunnicutt, 54 Ga. 337 (1876) ; Kilpatrick
V. Brashacr, 10 Ileisk. 372 (1873) ; Cannon v. Malhis, Id. 575 (1873).

■• Marshall, C, J., in Dunlop v. Ball, 2 Cranch, 184 (1804).

6 Hale V. Pack, 10 W, Va. 145 (1877).

RULE 7-1.] THE rRESUMPTIOX OF TAYMEXT. 3^3

II. A surety to a note under seal agaicst which by lapse of time a pre-
sumption of pa3'ment has arisen is aslied during this time to sell his land
to auother. He replies that he can not, as the creditor if he does, will
push him on the note, which he has promised not to do during his life
time. This rebuts the presumption of payment,'

In case I. it was said : *' Do sufficient circumstances exist
in this case to rebut the presumption of payiuent ? I think
so. The bond, it is true, was payable on demand, but the
accompanying circumstances show conclusively that neither
the obligors nor the obligee expected this bond to be paid
promptly. It is true a legal cause of action arose the
day the bond was executed; but it would have been a
gross breach of good faith if the obligor had sued on it
promptly. * * * ^\;]^q bond in this case was given by
the members of a mercantile firm to a brother of one of the
obligors. It was given for money advanced to them to be
used in their business. And tlio obliijee borrowed it for the
express i)urpose of letting them have the use of it in their
business. Their credit was not sufficient to enable them to
borrow this money, and the obligee borrowed it on his own,
simply for their accommodation. The whole object of this
arrangement would have been defeated by the obligee
demanding the payment of the bond promptly. Presump-
tion of payment, under such circumstances, would be as un-
reasonable as the presumption tiuit a bond was paid before
it was due. Abating, therefore, such reasonable time after
the bond was given before, accordino; to the understaudinj;
of the parties, it was to be paid * * * and the time
during which presumption of payment could arise in this
case, would be much less than twenty years."

H.

I. A deed of trust to secure a debt is made and recorded in June, 1841.
There are frequent sales of the land, some by the grantor and those
claiming under him, and the purchasers have no actual notice of the

1 Fisher v. riiillips, 4 Eaxt. 243 (1S7-4).

344 TRESUMrTIVE EVIDENCE. [rULE 75.

deed of trust until 1S7C. These facts rebut the presumption of payment
by lapse of time.^

RULE 75. — A presumption of payment other tlian by
lapse of time will arise from the production of a
receipt from the creditor ( A) ; from the possession by
the debtor of the security or obligation (B), or from
its cancellation (C) ; from the paj-mentof a later debt
(D) ; from the passing of money between debtor and
creditor after the debt is due (E) ; from the custom of
trade (F) ; or from other circumstances raising- an in-
ference of pajTnent '^ (G).

Illustrations.
A.

I. A. claims a horse in B.'s possession. B. produces a receipt signed
by A. for a sura of money for a horse. The presumption is that A. had
sold the horse to B. and had received the purchase-money. ^

II. B. sues C. on a note pa5'able in 1835. C. produces a receipt given
by B. to C. subsequent to the maturity of the note, and expressed to be
"in full of all demands." The presumption is that the note has been
paid.*

III. A. gives an order on R., stating that S. wishes to buy goods of R.,
and tliat A. will be responsible for S. S. indorses on the order a receipt
for goods "to the amount of $100." The presumption is that S. had
received the goods from R. to that amount.*

IV. A. sues B. on an account, who pleads payment, and produces a
check for the amount drawn on his bank and indorsed by A. This is pre-

1 Bowie r. Poor School Soc, 75 Va. 300 (1S81). For other cases in which the
circumstances of the case were held to rebut the presumption of payment from
lapse of time, see Ross v. Ellsworth, 49 Me. 41G (18C0) ; Ilendrick v. Bannister, 12 La.
Ann. 373 (1857) ; Wernet v. Mississciuoi Lime Co., 4G Vt. 458 (1S71) ; Tomlin v. Howe, 1
Gilmer (Va.),8 (1820).

- For illustration cf cases where payment has been presumed from circnm-
6tance8, see Patton v. Ast, 7 S. & R. 116 (1S21) ; First Nat. Bk. v. JIcManiglc, 69 Pa St.
IX (1871) ; Shinkle v. First Nat. Bk., 22 Ohio St. 517 (1872) ; Pope v. Dodson, 58 111.
360 (1S7J); Fuller v. Smith, 5 Jones (Eq.), 192 (1859) ; Rockwell v. Taylor, 41 Conn.
55 (1874) ; Wood v. Hardy, 11 La. Ann. 760 (1856) ; Vimont v. Welch, 2 A. K. Marsh. 12
(1819) ; Carson v. Lineberger, 70 N. C. 173 (1874) ; Robinson v. Allison, 36 Ala. 525
(1860).

3 Chart V. Letson, 17 N. J. L. 78 (IS.'JO).

4 Marston v. Wilcox, 2 111. 270 (1836).

6 Rawson v. Adams, 17 Johns. 130 (1819) ; Child v. Moore, 6 N. H. 33 (1832).

RULE 75.] THE TRESU^irTIOX OF TAYMnXT.

345

sumptive evidence of payment, though without tlie iudorscmcut by A. it
would not bc.^

V. A. sues B. on a note made by the latter. On the note were written
these words: " Cr. by casli rec'd, §20," through which a pen mark had
been drawn. The presumption is that the sum of Si'O had been paid on
the note.^

VI. The question is whether A. has paid B. a debt due him. An account
in B.'s hand and receipted by B. is produced for the amount. The pre-
sumption is that A. has paid B.^

VII. K. purchases goods from W. and is sued by W. for their price.
K. produces receipts for the purchase-money signed by W. The pre-
sumption is that W. has been paid.*

VIII. A credit is entered on the back of a bond. It bears some evi-
dence of an attempt to erase it, but is legible. The presumption is that
the payment has been made.*

" The credit which was indorsed upon the note," it was
said in case V. " is undoubtedly equivalent to an admission
by hiin that so much as was credited has been paid, and
there is no principle of evidence which will allow a person
after he has admitted a fact, even if the admission is by
parol, and not in writing, to do away the force of the admis-
sion by an after denial or withdrawal of it. Though it be
afterward denied, if it were by parol only, or if it be in
writing, though it be afterward erased or obliterated, the
admission is nevertheless evidence against the person mak-
ing it, and is entitled to all the weight of evidence of that
sort, until explained away or disproved by him."

In case VII. it was said: *' K. buys a lot of merchandise
from AV., and makes him two payments at such dates and
intervals of time as would likely accrue in the management
of such matters. The creditor party, diligent in claiming
and collectinjr his dues calls for his monev ; the debtor

1 Egg f. Barnett, 3 Esp. Chs. 196 (1810).
s Graves r. Moore, 7 T. B. Mon. 341 (182S).
8 Harrison v. Harrison, 9 Ala. 73 (1S46).

* Woolen f. Xall, IS Ga. 000 (1^5) ; and sec Scmggs v. Bibb, 33 Ala. 481 (lSo9' as
to a receipt " in full of all claims."

' Clark V. Simmous, i Tort. (Ala.) 14 (ISOC).

346 rKESUMPTIVE EYIDE>'CE. [kULE 75.

party, equally vigilant in guardinghis rights exacts a receipt
which is executed and delivered ; and now when offered in
proof it is rejected because, forsooth, it it may be false and
fraudulent and filled up to meet the case. And so it may,
and so the sun which has risen in the east for six thousand
years may not do so to-morrow. Experience, however,
would warrant a different conclusion ; and so the experience
of human conduct as to transactions similar to this would
justify a different presumption. Where an order for the
payment of money or the delivery of goods is found in the
hands of the drawee or a promissory note is in the posses-
sion of the maker, a legal presumption is raised that he has
paid the money due upon it or delivered the goods ordered.
So a bank-note will be presumed to have been signed before
it was issued, though the sig-nature be torn off; such beinor
the orderly course of such business. The same presump-
tion and for the same reason arises in favor of the genuine-
ness of these instruments, subject to be rebutted to be sure,
as are all other presumptions."

In Louisiana a presumption of payment does not arise
from the failure of the claimant to include the debt in the
schedule filed by him on a cession of his goods when he
was iiruorant of his rio-hts at the time the schedule was
made.^

B.

I. A draft payable to his own order drawn by T. on C. is found in the
possession of C. The presumption is that it was paid by C.^

II. An order for a sum of money drawn on A. by B. is produced by A.
The presumption is that it was paid by A-^

III. Drafts drawn by B. on A. and accepted by A. in favor of C. are
produced by A. The presumption is that A. has paid them.*

1 Trenoulet v. Cenas, 6 Mart. (N. 8.) 541; 17 Am. Dec. 105 (1828).

2 Gounelly v. McKean, 64 Pa. St. 113 (1870) ; Birkey v. McMiikin, Id. 343 (1870)

3 Zeigler v. Gray, 12 S. & R. 42 (1824).

■4 Hays V. Samuels, 55 Tex. 500 (1881). The presumption is that a man paying a
note will take it into his possession. Haywood f. Lewis, 65 Ga. 224 (1880), and it is
presumed that the payment was made to the person entitled to receive the money.
Lipscomb V. De Lemos, 68 Ala. 592 (1881) ; Potts v. Coleman, 67 Id. 221 (iSSO).

RULE 75,] THE TKESUMrTIOX OF PAYMENT. 347

IV. A. produces an ardor upon him si2:n<d by B., to deliver certaiu
articles. The presuiuptiou is that he has delivered the articles. '

This rulo i.s founded on a reasonaldo principle, which
is supported by numerous cases that where hills of exchange,
checks, orders for the payment of money or goods, promis-
sory notes or other ol)ligations are paid, they, as a general
rule, go into the hands of the person paying them. It is to
be presumed, as ah'eady said, that a man paying a written
obligation will take it into his possession.^

<' When," said Lord Ellenborough to the jury in an old
case, *' there is a competition of evidence upon the question
whether a security has or has not been satisfied by payment,
the possession of the cancelled security ought to turn the
scale in his favor, since in the ordinary course of dealin^-tho
security is given up to the party Avho pays it." ^ It has
been held that Avhere the defense of payment of a note or
other security is made, and the evidence on both sides is
evenly balanced, the possession by the plaintiff of the un-
cancelled paper will turn the scale in his favor.*

In case II. it was said: "No argument can be drawn
either from reason or convenience why possession of an
order by the person on whom it was drawn should not
prima facie be evidence of his having paid it to some one ;
and this whether it was pajable to bearer or only to a par-
ticular person. The presumption that the payee would not
part with his security without having received satisfaction
is a reasonable one, and although these orders are some-
times left with the persons to whom they are directed by

1 Kincaid v. Kincaid, 8 Humph. 17 (1847).

« Mills 1-. Uytlc, I'j Vt. 59 (184()) ; Garloch v. Geortncr, 7 Wend. 19S (1S31) ; Weidner
f. Scwcigert, 9 S. * U. 3S5 (liS23) ; Itubey r. Culbertson. 35 Iowa, 2C4 (lt>72) ; Eoniur-
vail r. Gillies, 31 Wis. ],V2 (1S72) ; Pcun v. Edward;!, 50 Ala. C3 (1673) ; Laue v. Farmer,
13 Ark. C4 (lSo'2) ; Edwards v. Campbell, 23 Barb. 423 (18dG) ; Bedell r. Carll, 33 N. Y.
5S1 (lt!G5) ; Union Canal Co. r. Lloyd, 4 W. & S. 303 (1842) ; Carroll r. Bowie, 3 II. &
McC. 4.")7 (1S4S) ; Larimoro v. Wells, 29 Ohio St. 13 (1S75) ; Bracken v. Miller, 4 W. &
S. 102 (1S42) ; Ritler r. Shenk, 101 111. 3j>7 (1SS2) ; Sutphen v. Cushman, 35 111. 187
(18C4).

s Brorabridgc v. Osborne, 1 Stark. 374 (ISlC).

* Doty t'. Jaues, 28 Wis. 319 (1S71).

348 PRESOIPTIVE EVIDENCE. [rULE 75.

careless persons, without payment having been made, yet
that sometimes occurs with receipts which accompany
tradesmen's bills, and no one would protend that a receipt
attached to a bill would, therefore, not be competent.
There is no necessity that the order should be indorsed by
the payee, or that it be made payable to bearer ; it is not as
evidence of the transfer of the debt, but as extinguishment
of it, that possession of the paper becomes material."

In an English case A. brought an action against B. for
money paid out by him in accepting and paying bills of
exchange for the accommodation of B. The bills were pro-
duced by C. It was held by the chief justice that the pre-
sumption was that he paid them, provided it was shown
that they were once in circulation after being accepted.^
"Show," said Lord Ellenborough, "that the bills were
once in circulation after being accepted, and I will presume
that they got back to the acceptor's hands by his having
paid them. But when he merely produces them, how do I
know that they were ever in the hands of the payee, or any
indorsee with his name upon them as acceptor? It is very
possible that when they were left for acceptance he refused
to deliver them back, and having detained them ever since,
now produces them as evidence of a loan of money."
This ruling has been criticised by our courts. " Undoubt-
edly," said Sharswood, J., in a Pennsylvania case : ^
*' they were no evidence of a loan, but having proved that
they were originally lent, of which the report docs not state
that there was any evidence, why should not the possession
of them by the acceptor, after maturity, raise the presump-
tion that he had paid them ? With the highest respect to so
great an authority upon nisi prius law, I may be allowed to
express a doubt as to the sufficiency of the reason. Con-
trary to established principle, it presumes a fraud to have
been perpetrated when the natural presumption is that which

1 Pful V. Vanbatenberg, 2 Camp. 439 (1810) ; and see Scholey v. AValsby, Pcake, 25
(1820).

'2 Connelly v. McKcan, 64 Pa. St. 118 (1870).

RULE 75.] THE rRESUMmON OF PA'i':MEXT. 3-19

consists Avith honesty. Besides ■u'hich it assumes that the
holder acquiesced in a palpable wrong. If the drawee
retains the bill an unwarrantable time, the holder could sue
him in trover. It is a reason which applies as well to a bill
which had been negotiated before acceptance; for the
indorsee may leave it in the hands of the drawee for accep-
tance. When the bill is presented it is reasonable that the
drawee should be allowed some time to deliberate whether
he will accept or not. It seems that he may demand twenty-
four hours for this purpose, and that the holder will be
justified in leaving the bill with him for this period. So
that even an indorsed bill produced by the acceptor after
maturity would not be evidence of payment if this is a sound
reason. But surely indorsed bills, checks, or orders for the
j^ayment of money are ^jre'wa facie evidence according to
the general current of the authorities."

C.

I. A. is sued on a note made by A. to the plaintiff's intestate. A.
produces the note with his name cancelled. The presumption is that the
note is paid.i

II. A note made payable to A. is sued on by his representatives
after his death. When produced in evidence the note has two lines
dra%\'n througli its face. The presumption is that it has been paid.'

III. A mortgage is cancelled. This raises a presumption that it is dis-
charged.'

In case I. it is said: *' Pothier, in his work on Obliga-
tions, says that ' it ought to be decided generally from the
possession of the debtor that the creditor shall be presumed
to have given up the security, either as acquitted or
released, until the creditor shows the contrary; as for
instance, that it was taken surreptitiously.' He says fur-
ther : 'There is suUicient ground to presume a donation

1 Gray f. Gray, 2 Lans. 173 (1869). Same as to note with name torn off. PoweU
V. Swan, 5 Dana, 1 (1S37).

» Pitcher v. Patrick, 1 Stew. & P. 478 (1832).

» Trentou Banking Co. v. Woodruff, 2 N. J. (Eq.) 117 (1S38).

o50 PRESUIMPTIVE EVIDENCE. [llULE 75.

and release of the debt when its debtor gives up the secur-
ity, and the circumstance of its being in the possession of
the debtor is a sufficient reason for presuming that the
creditor has given it up ; as that is the most natural way of
the possession passing from one to the other. * * * jf
a promissoiy note or bond should chance to be found in the
hands of the debtor, or if it be crossed, razed, or torn in
pieces, either of these circumstances will create a presump-
tion that it has been acquitted, which presumption will
remain until clear proof be brought that the debt is still
owing ; as that the appearance came by violence or acci-
dent.' " In this case both circumstances concur. The note
is found in the hands of the maker, and it is cancelled by the
removal of the maker's name. These circumstances could
not lawfully exist without the act or consent of the holder
of the note, and that they occurred unlawfully will cer-
tainly not be presumed."

In case II. it was said: "If at any time before a final
trial the note or bond upon which the action has been
brought undergo any alteration or receive any impression
indicating its destruction or satisfaction, it would appear to
be but a necessary and reasonable requisition on the plain-
tiff that he should afford the explanation. If the act done
was the result of mistake or accident, or if any effect
was designed by it different from its ordinary import he
alone must be presumed to know the circumstances and to
possess the means of explanation."

D.

I. A receipt of the payment of a quarter's rent is produced. The pre-
sumptiou is that all former rent is paid.i

II. A tax assessed against E. for the year 18.34 is not included in the
bill for 1835. The presumption is that it is paid.'''

1 Brewer v. Knapp, 1 Pick. 337 (1823) ; Crompton v. Pratt, 105 Mass. 255 (1870).
- Attlcborough v. Middleborough, 10 Pick. 378 (1830) ; and see Bobbins v. Town-
send, 20 7d. 345 (1838).

RULE

75.] TlIK rRESUMmON OF PAYMENT 351

III. The question is whether A. has paid a State tax assessed upon
his lands for the year 1842. The taxes assessed on the same laud are
proved to have been paid by A. for subsequent years. The presump-
tiou is that the tax for 1842 is paid.i

As said in another c:isc like case I., this presumption
arises from the improbability that the former rent remained
unpaid when rent is specifically received for a subsequent
period. This presumption obtains as well where several
persons are entitled to receive money, as in an individual
case, for they are all to be presumed conusant of their
rights. This presumption may be repelled, but standing
uncontradicted it is decisive.^

E.

I. It is proved that on January 1, 1880, B. borrowed a certain sum of
money from A. It is also proved tliat on a subsequent day an unascer-
tained sura of money passed from B. to A. The presumption is that A.
was paid his debt.'

II. Two persons account with each other and one pays a balance. The
presumption is that this is a settlement to date.*

III. A. sued B. for money alleged by him to have been loaned to B.
A. testifled: " B. requested me to send him $18; I sent it and he has not
paid me the same or any part of it." There was no other evidence. The
presumption was that the money was due to B.*

"There is no principle better settled," is was said in
case I., " than that w^here one pa3's money to another, in the
absence of explanation as to the cause of payment, the pre-
sumption is that it was paid because it was due, and not by
way of a loan. The plaintiff proved nothing more than he
would have proved by the production of a draft drawn by
the defendant on him, and proving that he, the plainlill", had

1 Ilodgdon t'. Wright, 36 Me. 337 (1853).

! Decker v. Llviugston, 15 Johns. 479 (ISIS) ; and see Walton r. Eklridg", 1 Allen,
203 (18G1).

3 Swain v. Ettling, ?,2 Pa. St. 4S6 (IfWO). When absence of other dealings is
shovrn, i)root of money iiai;l by maker to payee ■would raise presumption that it was
paid on the note. Somcrvail r. Gillies, 31 Wi?. 1,V2 (1872).

•< Bowling V. niackmau, 70 Ala. :I03 (1"^1) ; Nichols r. Scott, 12 Vt. 47 (ISIO).

« Sayles v. Olmstead, 66 Barb. 590 (1873).

352 PRESUMPTIVE EVIDENCE. [rULE 75.

paid the draft. On such evidence he could not recover
a2:ainst the drawer of the draft. Prima facie^ the accep-
tor and payer of the draft is the party primarily liable. It
is presumptively drawn against funds in the hands of the
drawee. * * * The case is destitute of any circum-
stance which can warrant the inference that the money was
advanced as a loan, unless the mere fact of the payment of
money by one party at the request of another is to be con-
sidered as furnishing legal evidence, that the money was
advanced as a loan. This can not be held without over-
turuino; well sustained rules."

F.

I. A brickmaker sues an architect for work and labor performed for
two years before bringing the action. It is the custom to pay the work-
men every Saturday night, and the plaintiff with the others has been
seen waiting to receive his wages. The presumption is that the work-
man had been paid.i

II. A remittance by mail is a presumption of payment where the
debtor has been requested by the creditor to remit in this way, or it is the
course of business.

In a case like case I. Gaselee, J., said: " In the regular
course, if a servant has left a considerable time, the pre-
sumption is that all the wages have been paid, and that makes
it proper to consider whether, in this case, the facts proved
rebut that presumption. In a case tried a few years ago at
Guild hall, which was an action by a workman at a sugar
refinery, a witness proved that the plaintiff had worked
there for more than two years. But Abbott, C, J., said,
that he should direct the jury to presume that men employed
in that way were regularly paid every Saturday night,
unless some evidence was given on the part of the plaintiff
to satisfy the jury that the plaintiff had, in point of fact,

1 Lucas V. NovisdienBki, 1 Esp. 29C (1795). The words " terms cash " on ah unre-
ceipted bill of goods sent by a wholesale to a retail dealer raise no presumption of

■ law that the goods were paid for before they were shipped. Wellauer v. Fellows,
48 Wis. 105 (1>*79).

2 Boyd V. Reed, G Heisk. C31 (1871).

RULE 75.] THE rPwESUiirXION OF PAYMENT. 353

never been paid ; and as no such evidence s\-as produced
the plaintiff was nonsuited."

G.

I. A. sues B. for the price of eleven hogs sold by A. to B. B. pleads
payment. It is proved tliat A. went to B.'s honse to settle for the hops,
that he had no money -when ho went in, but had when he came out, which
money he stated he had received of B. The presumption is that A. was
paid.i

II. A. gives B. a promissory note. This raises a presumption that B.
was not at this time indebted to A.^

III. A new note for a less sum than an old note is given in renewal.
The presumption is that all claims between the parties had been
adjusted.'

In case I. it was said: '* If he had no money, went to
defendants to settle for the hogs, and when he left them had
money, and said he got it from them, it needs no argument
to show that it is legitimate to presume, or at least the jury
may presume therefrom, that he did settle and get his
pay."

It is held in some States and jurisdictions that the giving
of a negotiable paper by the debtor to the creditor for the
amount of an antecedent debt is a payment of the anteced-
ent debt.'* But in other States this is denied.'

In Strong v. Hirst, ^ Dickerson, J., reviews the conflict-
insT authorities at lensfth: "Ever since the decision in

1 Whistler V. Drake, 35 Iowa, 103 (1872). For other cases in which payment has
been inferred from circumstances see Connecticut Trust Co. r. Mclandy, 119 Mass.
450 (1876) ; Alvord r. Baker, 9 Wend. 323 (1S32) ; Risher v. The Frolic, 1 Woods, 1(2.

» De Freest x\ Bloomingdale, 5 Denio, 304 (ISiS).

» Piper f. Wade, 57 Ga. 223 (1S7G).

4 Campbell v. Hays, 1 Ind. 547 (1S49) ; Kirrhner r. Lewis, 27 Ind. 23 (1866) ; Grim-
mell V. Warner, 21 Iowa, 11 (1S66) ; Green r. Uusscll, 132 Mass. 53S; Ely v. James, 123
Mass. 36; Melledge v. Boston Iron Co., 5 Cush. 153; French v. Price, 24 Pick. 13; Wes-
ton V. Wiley, 73 Ind. 55 ( issi) ; Rishcr v. The Frolic, 1 Woods, 92 (1S70) ; Wallace v.
Agry, 4 Mason, 3"6 (1327) ; Tisdale r. Maxwell, 53 Ala. 40 (1S77) ; Copeland v. Clark, 2
Ala. 333 (1311) ; Alabama, etc., Co. r. Sanford. 30 Ala. 703 (1^T>0).

6 Ward f. Howe, 33 N. H. 35 (1859) ; Vail v. \a\\, 4 N. Y. 312 (1850) ; Matteson f.
Ellsworth, 33 Wis. 488 '1873) ; May i\ Gamble, 11 Fla. 407 (1874).

e 61 Me. 9 (1871).
23

354 PKESTOirxIYE EVIDENCE. [rULE 75.

Thatcher y. Dinsmore,^ the acceptance of a negotiable note
or bill of exchange by the creditor for a pre-existing debt
has been held to be payment of such debt, both in Massa-
chusetts and this State, unless a contrary intention is shown.
This principle, however, obtains only in these States and
Vermont ; the United States courts and the courts of England,
New York and the other States generally holding the contrary
doctrine — that the acceptance of such note or bill does not
extinguish the debt, unless it is agreed that it shall operate as
payment.^ Such, also, is the doctrine of the civil law and of
the States and countries that have adopted that system of
jurisprudence.^ In order to protect a debtor who has given
negotiable paper for an antecedent debt from liability to be
twice charged with the same debt, the courts that adopt this
latter theory of the law upon this subject, also hold in gen-
eral that the note or bill must be produced and cancelled or
given up before the creditor will be allowed to recover upon
the original consideration.'* Thus, each of these different
theories of the law alike protects the debtor from liability
to pay the same debt twice. While such is the law in other
jurisdictions, the tendency of the courts in Massachusetts and
Maine has been to restrict, rather than extend the rule laid
down in Thatcher v. Dinsmore and Varner v. Noblehoro,^
Pomeroy v. Rice^^ Melledge v. Boston Iron Co.^ Zerawt
V. Wilson^ Perrin v. Kean^ Paine v. Dwinal}^ The
courts in these States also hold thatthe presumption of pay-
ment is rebutted, and the creditor may repudiate the secur-
ity taken and rely upon the original contract when there is

1 5 Mass. 299 (1809).

- Peter v. Deverly, 10 Pet. 532; Ward v. Evans, Ld. Raym. 928; Musser v. Price, 4
East, 197 ; Vail v. Foster, 4 N. Y. 312 ; Ward v. Howe, 38 N. H. 35.

2 Wallace v. Agry, 4 Mason, 344.

* Davis I'. Dodd,4 Taunt. C02 ; Holmes v. DeCamp, IJohns. 34; Hughes «. AVlieeler,
8 Cow. 77; Schemmelpeuich v. Bayard, 4 Pet. 264; Rangier v. Morton, 4 Watts, 203.
' 2 Me. 121.
« 16 Pick. 22.
" 5 Gush, 158.
8 8 Cush. 424.
0 19 Me. 355.
JO 53 Me. 53.

RULK 7().] THE TRKSUMPTIOX OF PAVMENT. 355

finy fraud in giving it, or it is accepted under any ignorance
of the facts or a misapprehension of the rights of the par-
ties.^

A payment made on a general account is presumed to
to have been applied to the oldest items. ■•* "Where payment
is voluntarily made and accepted as a full compensation, it
is to bo presumed that the parties measured the loss by the
same rule that the law would apply to it.^ But when the
payee of a note, at the time it becomes due, takes a note
for the same amount signed by persons, some of whom are
not parties to the first note, and retains the first note, there
is no presumption of law, in the absence of an agreement to
that effect that he receives the second note in payment of
the first.* The presumption of law is that a bill or order on
a third person for a debt is taken as a conditional payment
only.*^

RUL.E 76. — The presumption in Rule 75 (B and C)
docs not arise, where the debtor had the means of
obtaining possession of or of cancelling the obliga-
tion other than by paying it (H), nor in D and E
where the debt paid was not the debtor's alone (J).

Illustrations.

H.

I. A father held the note of his son for §425. On the father's death
his representatives sue on the note; but the son produces it cancelled.
It appears that he had the means of access to his father's papers. There
is no presumption that the note had been paid.'

In case I. it was .said: " Is the production of this note
by the defendant, under the facts of this case, evidence of

1 French v. Price, 24 Pick. 21 ; Paine v. Dwinal, 53 Me. 53.
» Bancroft r. Holton, .W N. H. 141 (IST'.O.
» Uobesoa v. Schuylkill Xav. Co., 3 Grant's Gas. 190 (1S55).
* Woods V. Woods, 127 Mass. 141 (IST'J).

B Haines v. Pcarce, 41 Md. 221 (1S71) ; Peter r. Beverly, 10 Pet. 532 (1836).
« Grey r. Grey, 47 N. Y. 533 (1972) ; Kenney v. Public Admimstrator, 2 Bradf. 319
(1853).

356 PEESUMPTIVE EVIDENCE. [rULE 77.

its discharge when it is proved not to have been paid or sat-
isfied. I think it is not. Pothier, (Obligations, 73) says,
that Boiseau holds that possession of the note affords a pre-
sumption of its payment ; but if he allege a release he must
prove it ; for a release is a donation and a donation ought not to
be presumed. Pothier differs and thinks it should be pre-
sumed unless the creditor shows the contrary. But Pothier
agrees with Boiseau, that if the debtor was the general agent or
clerk of the creditor having access to his papers, possession
alone might not be a sufficient presumption of payment or
release — so if he was a neighbor into whose house the
effects of the creditor had been removed on account of a fire.
The latter proposition seems applicable in this case. Here
the case shows without contradiction that the defendant liv-
ing at home with his father had a key that fitted his father's
desk where the note was kept.

I. A. was indebted to B. on a note made by himself and others. After
the maturity of the note A. renders services to B. who pays him money
therefor. la a suit on the note by B. there is no presumption that A.
had paid it.i

In case I. it was said, that as all the parties to the note
were joint makers and equally bound, there could be no
presumption that A. settled what was not exclusively his
own debt.

RULE 77. — Tlie presumption of payment is stronger
than the presumption of continuance, but weaker
than the presumption of innocence.

Illustralions.

I. An action is brought on an administrator's bond to compel him to
account for and pay over the amount of a private debt due from him to
the intestate. Twenty-four years have elapsed since the boud was given.

1 Mechanics' Bank v. Wright, 53 Mo. 153 (1873)

RULE 77.] THE rRESUMPTIOX OF TAYllENT. 357

There is no proof of a decree of distribution ordering him to pay to the
heirs. Therefore the presumption of payment and the presumption of
innocence (arising from the fact tliat lie would have violated his duty in
paying without a decree) conflict, and the latter must prevail. *

In case I. it was said: "It has been further contended
that the facts furnished a legal ground on which the jury
miglit have presumed that the defendant had paid or ac-
counted to the heirs of the intestate for the amount of tho
notes without the formality of any proceeding in the pro-
bate court by way of a settled account and a decree
thereon, and that the judge should have left this question
to the jury. The obvious reply to this objection and argu-
ment, is that the law does not presume that an administrator
does wrong; it does not presume that tho defendant did
what by law he had no right to do, that is that he had made
an unauthorized payment to the heirs under the circum-
stances mentioned. He was bound to account to the judge
of probate, and he had no right to pay the heirs but under
decree. To presume it would be to presume against law
and right. We do not mean to say that had there been
proof that the amount of the notes had been actually
apportioned, and paid to to the several heirs, though without
a decree of the probate court, it might not, in a hearing in
chancery, be a bar to an execution for any thing beyond
nominal damages. It would be as strange to sanction tho
presumption where mentioned as that which was relied upon
in another part of the argument to prove that the intestate
had forjrivcn the debt due on the notes. Wrongs and gifts
are not to be presumed; they must be proved."

1 Potter f. Titcomb, 7 Me. 302 (1S31).

CHAPTEE XVI.

PRESmiPTIONS CONCERNING FOREIGN LAWS.

RULE 78. — Where in one State or country the law of
another State or country is the subject of inquiry,
the law of the forum will be presumed to be the
law of the foreign State or country.^

Illustrations.

I. An action is brought in New York on a policy of life insurance,
•which contained a forfeiture clause, "if the insured should die in the
known violation of any law of any State or of the United States," The
insured was killed in Louisiana while attempting to take the property
of another by force to satisfy a debt. This being a violation of law
by the common law of New York, the presumption is that it is so in
Louisiana.*

1 ISIc Anally v. O'Neal, 56 Ala. 299 (1876) ; Connor v. Trawick, 37 Ala. 289 (1861) ;
Averett v. Thompson, 15 Ala. 678 (1849) ; Cox v. Morrow, 14 Ark. 603 (1S54) ; Uobinsoa
V. Dauchy, 3 Barb. 20 (1&48) ; Stokes v. Macken,62 Barb. 149 (ISCl) ; Ilenthorn v. Doe,

1 Blackf. 157 (1S22) ; Abell v. Douglas, i Denio, 305 (1847) ; Starr v. Peck, 1 Hill, 270
(1S41) ; Crake v. Crake, 18 Ind. 156 (1862) ; Dalton v. Lusk, 16 Mo. Ill (1852) ; Henry
V. Uoot, 33 N. Y. 554 (1865) ; Goodman v. Griffin, 3 Stew. (Ala.) 160 (1830) ; Re High,

2 Doug. (Mich.) 515 (1847); Holmes v. Mallett, 1 Morris (la), 82 (ls40) ; Dubois v.
Mason, 127 Mass. 37 (1879) ; Warren v. Lusk, 16 Mo. Ill (1852) ; Davis i . Bowling, 13
Mo. 651 (1854) ; Hydrick v. Burke, 30 Ark. 124 (1875) ; Seaborn v. Henry, 30 Ark. 469
(1875) ; Hall v. Pillow, 31 Ai-k. 32 (1876) ; Buckinghouse v. Gregg, 19 Ind. 401 (1862) ;
Schurman v. Marley, 29 Ind. 459 (186S) ; Rogers v. Zook, 86 Ind. 237 (1882) ; Hadcn
V. Ivey, 51 Ala. 381 (1874) ; Cahalan v. Monroe, 70 Ala. 271 (1881) ; Evans v. Covington,
70 Ala. 440 (1881); Brown v. San Francisco Gas Co., 58 Cal. 426 (1881); Alford v.
Baker, 53 Ind. 279 (1876) ; Selma & R. Co. v. Lacy, 43 Ga. 461 (1871) ; Meyer v. McCabe,
73 Mo. 236 (1880) ; Holmes v. Broughton, 10 Wend. 78 (1833) ; Cressy v. Tatom, 9 Oreg.
541 (1881). McLear v. Hunsickcr, 29 La. Ann. 539 (1877), decides that an officer in
another State will bo presumed to have no greater powers than he has by the law
of Louisiana. Paine v. Xoelke, 43 N. Y. (S. C.) 176 (1878). The courts ol' Indiana will
presume that a promissory note made payable in another State (e.g., Kentucky) ia
governed by the common law and not by the law merchant. Alford v. Baker, 53
Ind. 279 (1876). " Where a note is made and made payable in another State, and
bears a higher rate ol interest than is allowed by law in this, but suit is instituted
upon it for collection, it is not necessary to plead any law of such State touching
interest. The court presumes the common law to be in force in such other State
of the United States, with perhaps an exception or two; that law established no
rate of interest, and hence we presume the contract valid, according to existing
law, when and where it is made." Buckingham v. Gregg, 19 Ind. 401 (1862) ; Men-
denhall v. Gatcly, 13 Ind. 150 (1862).

2 Bradley v. Mutual Benefit Life Ins. Co., 3 Lans. 341 (1870).

( 358 )

RULE 78.] PRESUMTTIONS CONCERNING FOREIGN LAMS. 359

II. An action is brought in Missouri ou a sight bill of exchange drawn
in New Yorlc. Days of grace upon such bills have been abolished by
statute in Missouri. The presumption nevertheless is that in New Yorli
grace is still allowed as at common law.'

III. A. brings an action in New York on a policy of insurance made
in New Jersey on the life of B., in which he had no interest. A. can not
recover, for such an insurance was Invalid at common law, and will be
presumed to be also invalid in New Jersey.'

IV. An action is brought in Massachusetts on a contract made by an
attorney at law in New York, to conduct a litigation, in consideration of
receiving ten per cent of the amount recovered. The presumption is that
such a contract is void in New York.^

V. In an action brought in California on a judgment obtained in New
York, interest is claimed. Held, that interest could not be recovered
without showing that the law of New York allowed interest. The com-
mon law did not, and that law will be presumed to be in force in New
York.*

VI. A will made in Georgia is before the courts of xUabama. .The
words, " surviving children," are to be construed. The construction
given to these words by the decisions of the Alabama courts is presumed
to be the construction which the words would receive in Georgia.^

VII. To a promissory note made in Kentucky and sued on in Illinois,
the plea is made that there was a want of consideration. It is objected
that the plea is bad in not alleging tliat want of consideration is a good
defense to a note by the laws of Kentucky. The plea is held good as this
will be presumed.^

VIII. A limitation over by deed after a life estate of personal property
made in Virginia, is sought to be enforced in North Carolina. The
attempt fails, for the presumption is that such a limitation is void in
Virginia.'

IX. In an action in Alabama on a promissory note, the question arises
•whether a promissory note is negotiable in Georgia, Promissory notes
being negotiable by the common law, the presumption is that it is.*

X. A married woman claims in the courts of Arkansas a sum of money
derived from the sale of her property in Tennessee. Atcommon law this

1 I-ncas V. Lndcw, 2S Mo. rAI (1850).

« Reese v. Mutual Benefit Ins. Co., 23 X. Y. 517 (ISGl).

« Thurston v. Pcrcival, 1 Tick. 415 (18-2r>).

* Thompson v. Morrow, 2 Cal. 99 (1S52).
6 Sharp f. Sharp, 35 Ala. 574 (ISCO).

• Crouch v. Hall, 15 111. 2G3 (1S53).

■t Griffin v. Custer, 5 Ircd. (Kq.) 413 (1S48).

« Dunn r. Adam.s 1 Ala. 527 ; 35 Am. Dec. 42 (1S40).

360 PRESUMPTIVE EYIDElSrCE. [rULE 78.

belonged to her husband. The presumption is that it is so in Tennessee
and the married ■woman suing in Arkansas can not recover. ^

XI. The question in Kentuclcy is Tvhether a note executed in Maryland
is usurious by the laws of that State. There is no presumption that it is,
but the statute must be proved.^

XII. A contract made in Pennsylvania is sued on in Kentucky, which
at common law would be champcrtous. The presumption is that it is
void in Pennsylvania.'

XIII. In Alabama, an action is brought by a sole distributee of the
property of an intestate in Mississippi. At common law the title to the
personal property of an intestate is cast upon his personal representa-
tive and not upon his next of kin. Such will be presumed the law in
Mississippi.*

XIV. A marriage de facto is proved. The presumption is that it is
according to the laws of the country where it took place.*

XV. A note made in Kansas on Sunday is sued on in Georgia. In
Georgia, contracts made on Sunday are void. The presumption is that
thejf are also void in Kansas. ^

In case I. it was said: ** In the absence of proof we are
justified in presuming the law of Louisiana to be the same
with the law of this State, and that whatever would be a
violation of the law here, may for the purposes of this case
be considered a violation of the law there. * * * That
the act committed by the insured was a violation of the law,
there can bo no doubt."

In case IV. Parker, C. J., said: '* It has been suggested
that as the contract was made in reference to a suit pending
in New York it is no breach of the laws of this State, for
it may be that a similar contract would be good by the laws

1 Hydrick v. Burke, 30 Ark. 124 (1875) ; Smith v. Peterson, 63 Ind. 243 (1S7S).

« Greenwade V. Greenwadc, 3 Dana, 497 (1835) ; Forsyth v. Baxter, 3 111. 'J (1839).

3 Miles V. Collins, 1 Mete. (Ky.) 311 (1858).

* Ueese v. Harris, 27 Ala. 301 (1855).

6 Raynham v. Canton, 3 Pick. 293 (1825). In Com. v. Kinney, 120 Mass. 387 (1876)
on an indictment for bigamy it was said : " The law of Ireland, being a foreign law,
is matter of fact of which our courts have no judicial knowledge without proof; and
no proof of it was introduced at the trial. A marriage solemnized by a priest and
under which tlio parties have cohabitated as husband and wife, in prima f arte a valid
marriage everywhere." And see U. S. v. Jennegen, i Cranch 0. C. 118 (1830) ;
Hynes v. McDerraotl, 82 N. Y. 44 (1880).

6 am V. Wilker, 41 Ga. 449 (1871).

RULE 78.] niESUMPTIONS CONCERNING FOREIGN LAWS. 3G1

of New York, we having no evidence that there is any law
of that State against champerty, or that such a contract as
this would constitute the offense. But if maintenance or
champerty is malum in se and an offense at common law it
is to be presumed without any statute that tlie same law is in
force there. • * * It certainly would bo a violation of
the comity due to a sister State to uphold a contract which
would be void hero merely because the mischief contem-
plated was to be executed there. As well might an action
be maintained upon a promise, the consideration of which
■was the commission of an assault and battery in New
York."

*'As a general rule," it was said in case ^t:!., " courts
•will not take judicial notice of the laws of another country,
but they must be alleged and proved as facts. Especially
is this the case as to statutes and local usages of such coun-
try. But the rule is not without qualification. In the
absence of all proof to the contrary the common law is
presumed to prevail in the States of the Union. On a
common-law question the courts of one State will assume
that the common law is in force in a sister State. By the
common law a want of consideration is a good defense to
a note in the hands of a payee or an indorsee after matur-
ity. The presumption here being that the common law
prevails in Kentucky the makers have a perfect defense to
the note.

In case VIII. it was said: " By the common law such a
limitation of a chattel by a deed is void ; for the life estate
consumes the entire interest. We presume the common
law prevails in that State, until the contrary appears."

«' There is no proof," it was said in case IX., " what the
law of Georgia is, or whether there has been by statute any
chanf^e of the common law which we judicially know obtains
in all the States of the Union, and in the absence of such
proof we will presume that the common l:iw prevails.
Though some doubt was at one time thrown over the ques-

3G2 PRESU3IPTIYE EVIDENCE. [kULE 78.

tion by the scruples of Lord Holt, it is now generally con-
ceded that promissory notes were negotiable at common
law ; such being the case, and presuming, as we must, that
such is the law of the State of Georgia, the declaration
which treats this note as an instrument negotiable by the
law merchant is correct."

In case XI. it was said : " Each State has its own peculiar
statutes on the subject of interest as well as usury. In
some of the States a greater rate of interest may be reserved
by special contract on the loan of money than is collectible
on ordinary bonds or notes, and in others a much higher
rate of interest may legally be reserved than is sanctioned
by the laws of Kentucky ; and in others there are no prohib-
itory statutes against usury. What may be the legal rate
of interest in Maryland, and whether any, and if any, what
laws existed in said State against usury at the time when
said contract was made, this court can not judicially know.
These are facts to be averred and proven like other facts.
And as in this case they are neither averred nor attempted
to be proven, this court are not warranted in concluding
that the note was executed as a contract for a loan of money
in violation of any law of said State."

In case XII. it was said : " The court will presume, until
the contrary is alleged and proved, that the common law is
yet in force in the State of Pennsylvania. The plaintiff,
in attempting to manifest his right to a part of the judg-
ment, exhibits a contract void by the common law. * * »
It is possible that the common law has been altered in
Pennsylvania by statute, and that the contract under
which the plaintiff claimed was not void. We find in
the record a deposition tending to show that this is true.
If it be true that such change has been made by statute,
the fact should have been stated in the petition and then
proved."

In case XV. it was said: ''The main and controlling
question made by the record is whether a note executed on

RULK 78.] PKESUJIPTIONS CONCERNING FOKEIGN LAWS. ci(J3

the Sabbath clay, and given in the business or work of the
parties' ordinary calling, and not in pursuance of works of
necessity or charity, is such a contract as may bo enforced
under the laws of this State. There is nothing disclosed
by this record rclativ^e to the laws of Kansas on this sub-
ject, and the principle of lex loci, or the doctrine of com-
ity, as to how far Georgia would permit contracts violative
of her public policy to be enforced, conceding such con-
tracts to bo valid outside her territorial limits where made,
but conflicting with her own system of laws and public
policy, is a question we need not decide, as there is nothing
in this record which would authorize this court to presume
such law or statutory provision to exist. Sitting as we do
to administer the laws of this State in questions to be
determined by our courts, we are necessarily governed by
the laws as we find them existing here, except proof is made
of different provisions of law existing when the contract
souf^ht to be enforced was executed. As a general rule the
laws of the place when proved, lex loci contractus, will be
administered by courts wherever the enforcement of the
contract is invoked. But to this general rule there are
exceptions ; for courts will not lend their processes or pow-
ers to enforce laws which contravene the public policy, or
are immoral, or in conflict with the fundamental principles
of conscience, or morality pervading the Legislature of the
State when the power of such court is invoked; and this
court, while it broadly, and in the widest sense, recognizes
comity upon all questions within its legitimate scope and
operation, has, nevertheless, asserted in its prerogatives of
justice these exceptions to the general rule. In this case,
however, the question is what construction courts will give
to the law of contracts, where there is no proof of the lex
loci/' And we hold, in the absence of proof to the contrary,
the legal presumption is that the lex loci is the same as our
own. "We are sustained in this presumption by the fact
that a contrary view would suppose the people of Kansas to

3G4 PRESUJIPTIVE EVIDENCE. [rULE 78.

have annulled the decalogue, and to have permitted by law
the disregard of Christian obligation, and not only forgot-
ten, but violated the injunction, <' Remember the Sabbath
day to keep it holy; on it thou shalt do no manner of
work." This State for over a century has recognized upon
her statutes the sanctity of the obligation, and punished its
violation. All worldly labor or work done in the ordinary
calling of our people on the Lord's day is forbidden under
penalties, and only such acts as necessity invokes or charity
inspires are exempted from their infliction. This court in
the thirty-first Georgia ^ has expressly ruled that the payment
of money on a note was a transaction in violation of the
law, it being made on the Lord's day or Sunday, and did
not constitute such an acknowledgment of the debt as would
raise the presumption of a promise sufficient to take the
case out of the Statute of Limitations ; that the act of pay-
ment was void, and all the obligations growing out of it
were null and void. And this is the almost unbroken cur-
rent of American authority. * A promissory note given on
a Sunday is void as between the parties,, and subsequent
promise to pay it will not make it valid.' ^ *A note signed
and delivered on Sunday is invalid.' ^ *A note given on
Sunday for the price of a horse sold on that day is void.' *
And the same doctrine is laid down in the following cases:
38 Mississippi, 344; 16 Iowa, 49; 9 Minnesota, 194; 8
Minnesota, 18 and 41; 9 New Hampshire, 500; 14 New
Hampshire, 233; 41 New Hampshire, 215 ; 4 Indiana, 619;
13 Indiana, 565; 1 Hunt's Cases (Tennessee), 261; 3 Wis-
consin, 343; 5 Alabama, 467; 10 Alabama, 566; 18 Ala-
bama, 280; 25 Alabama, 528; 27 Alabama, 281; 18
Vermont, 379; 24 Vermont, 318; Michigan Reports, 2
Douglass, 73. And we might expand, if we had time, this
cloud of authority in support of a doctrine almost without
exception, and those rather in modification of the rule than

1 p. 607. 3 48 Me. 198.

2 Pope V. Lynn, 50 Me. 83. * 26 Me. 464.

RULE 79.] PRESUMPTIONS CONCERNING FOREIGN LAWS. 305

in conflict with it. Grouping, however, this mass of author-
ity from every section of this continent, wo think it would
be unjust to the Christian civilization of this age to permit
any other presumption than tiio one wo have laid down,
to wit : that, in the absence of proof of any law to the con-
trary, the presumption is that the law of this contract must
be held to be the same as our own. And as our courts have
hold all contracts made in the pursuance of tho ordinary
callings or business on the Lord's day or Christian Sabbath,
to be void, it follows that this court so adjudges in the case
at bar, and the judgment of court below is, on this ground,
reversed."

RULE 79. — Acts which are criminal by the law of the
forum and arc malum in so, will ho presumed to be
crimes in a foreign state or country.

Illustrations.

I. The question is in Massachusetts whether an assault on the person
is a crime in Louisiana. The presumption is that it is.^

II. A. is proved to have robbed B. while in France, and to have killed
C. while in England. Tlie question arising iji a proceeding in the courts
of an American State, the presumption is tliat these acts were crimes by
the laws of France and England respectively. ^

III. In the course of a proceeding in the courts of an American State,
the question arises whether C, who sold goods on Sunday in England,
andD., who sold liquor in Scotland without a license, have been guilty
of criminal acts. The American courts will refuse to presume that they
have.'

Robbery, larceny and assaults upon the person which are
criminal offenses by the common law, and the laws of all
civilized countries, will in one State be presumed to be
crimes in another.*

1 Cluff I'. Mutual Benefit Life Ins. Co., 13 Allen, 309 (1S6C).

2 Id.
8 Id.

* Cluff r. Mutual Bencnt Life Ins. Co., 13 .Ulcn, 30^ (1SC6).

3G6 PRESOIPTIVE EVIDENCE. [rULE 80.

RULE 80. — The term '* another state or country"
within Rule 78 does not (in the United States) include
a state or country which has never hcen subject
to the conunon law of England (A) or a tribe or
nation uncivilized (B).

Illustrations.
A.

T. An action is brought in Missouri to recover damages for breach of
a parol promise made iu Texas to accept certain drafts. Such a promise
was valid at common law, but is not enforceable under the Missouri
statute. The court can not presume that the common law is in force in
Texas, and the plaintiff fails.^

II. In a dispute concerning property in the New York courts, the law
of Eussia as to husband and wife is iu question. There is no pre-
sumption that the common law of New Yorli on this question prevails in
Russia.^

III. The question arises in California as to what is the law in Texas
on a certain point. There is no presumption that the rule on the point
iu Texas is the rule of the common law.'

In case I. it was said : " Counsel for the plaintiff ask us
to presume, in the absence of evidence, that the common
law is in force in Texas. The presumption can only be
indulged with reference to those States which, prior to
becoming members of the Union, were subject to the laws
of England. Texas was a part of the Spanish possessions
on this continent, and if the common law ever prevailed
there or now prevails there it must be by virtue of some
statutory provision of which we can not take judicial
notice."

In case III. it was said: " The will must be interpreted
according to the law of Texas, where it was made and

1 state V. Mulhall, 72 Mo. 523 (18?0).

* Savage v. O'Neil, 44 N. Y. 208 (1871), overruling Savage v. O'Xeil, 42 Barb. 374
(1864). And see Owen v. Boyle, 15 :Me. 147 (1838) ; 32 Am. Dec 143.
« Norris v. Uarris, 15 Cal. 2-JG (1860).

RULE 80.] TRESUMPTIONS CONCERNING FOREIGN LAWS. 3G7

wlioro the property upon -which it operated was situated.
To that law we must resort to determine the capacity of tho
testator, the extent of his power of disposition, and the con-
ditions upon which tho power of alienation vested in the
guardian was to be exercised.^ In the present case there is
no proof what the law of Texas is upon these subjects.
One of the counsel of the defendants insists that, in the
absence of such proof, the rule is to presume the existence
of the common law and to be governed by its principles.
There is no doubt that the common law is the basis of
the laws of those States which were originally colonies of
England, or carved out of such colonies. It was imported
by the colonists and established so far as it was applicable
to these institutions and circumstances, and was claimed by
the Congress of the United Colonies in 1774 as a branch of
these ' indubitable rights and liberties to which the respec-
tive colonies ' were entitled.^ In all the States thus hav-
ing a common origin, formed from colonies which con-
stituted a part of the same empire, and which recognized
the common law as the source of their Jurisprudence, it
must be presumed that such common law exists — it has
been so held in repeated instances — and it rests upon par-
ties who assert a different rule to show that matter by
proof .^ A similar presumption must prevail as to the exis-
tence of the common law in those States which have been
established in territory acquired since the Revolution ; when
such territory was not at the time of its acquisition occu-
pied by an organized and civilized community ; where, in
fact, the population of the new State upon the establish-
ment of government was formed by emigration from the
original States. As in British colonies, established in
uncultivated regions by emigration from the parent coun-
try, the subjects are considered as carrying with them the

1 JariTian on Wills, 1 ; 2 Grccnl. ou Ev., 6cc. 671.

* 1 Kent's Coimn. 31:?.

« See Inge r. Alurphy, 10 Ala. 605.

368 presujVIPtive E\^DENCE. [rule 80.

common law, so far as it is applicable to their new position,
so, when American citizens emigrate into territory which is
unoccupied by civilized man, and commence the formation of
a new government, they are equally considered as carrying
■with them so much of the common law, in its modified and
improved condition under the influence of modern civiliza-
tion and republican principles, as is suited to their new con-
dition and wants. But no such presumption can apply to
States in which a government already existed at the time
of their accession to the country as Florida, Louisiana, and
Texas. They had already laws of their own, which
remained in force until by the proper authority they were
abrogated and new laws were promulgated. With them
there is no more presumption of the existence of the com-
mon law than of any other law. They were independent
of the English law in their origin, and hence no presump-
tion of the common law of England can be indulged. In
countries conquered and ceded to England, the common
law has no authority without positive enactment, and for
the same reason that they were not part of the mother coun-
try, but distinct dominions.^ As Texas was an independ-
ent country at the time of its accession to the United
States, having laws of its own, not being carved out of the
ancient colonial provinces of England, like the original
thirteen States, or formed by emigration into an unculti-
vated country from those States, but from a Mexican
province by a successful revolution against the Republic of
Mexico — no presumption can arise of the existence therein
of the common law, which is the basis of the Jurisprudenco
of the other States."

In a New York case,^ Kent, C. J., said: " The court can
not know ex officio what are the rights and disabilities of
infants, or when infancy ceases by the provincial law of
Jamaica. These questions depend much ujoon municipal

1 1 Black. 107; 1 Story on the Cons. 150.

a Thompson v. Ketcham, 8 Johns. VM (1811).

RULE 81.] PRESUilPTIOXS COXCERXIXG FOHEIGN LAWS. 3tj9

regulation; and what the foreign law irf must be proved as
a matter of fact." ^

B.

I. A person acting in the Creek Nation of Indians as an administrator
claims in Arkansas to havo sold certain proi)erty under sucli power. The
court will not presume that the common law in this respect is the law of
the Creeks.*

** If this had been an administration in a sister State," it
was said in case I., " in the absence of the statute laws of
the State, we should hold, as we repeatedly have, that the
common law was in force under which the powers and duties
of the administrator would be determined. * * * j^u^
we are not prepared to say that we will presume the exi.s-
tence of the common law in a semi-civilized nation of In-
dians, acting under usaijes and customs of their own."

RULE 81. — When one State or country adopts a stat-
ute of another State or country which has received a
judicial construction in that country, such construc-
tion is presumed to have been adopted with the stat-
ute.

Illustrations .

I. An Enfrlish statute ^ relating to gaming had been construed by the
English courts to include horse racing under the words " other games."
The State of Illinois subsequently adopts this statute. The presump-
tion in the Illinois courts is that this construction was adopted with the
statute.

1 In Mostyn r. Fabrigas, Cowp. 174 (1774), Lord MansflelJ said: "But it is
objected thai supposing the defendant to liave acted as the Spanish Governor was
empowered to do before, hnw is it to be known here that bj' tlie laws and constitu-
tion of Spain, he was authorized so to act. The way of knowing foreign laws is by
admitting them to be proved as facts, and the court must assist the jury in ascer-
taining what the law is. For instance, if there is a French setUement, the construc-
tion of which depends upon tlie custom of Paris, witnesses must be received to
explain what tlic customs ij us evidence is received of customs in respect to trade.
So in tlie supreme resort before the king in council, the I'rivy Council determines
all cases that ari>e in the plantations, in Gibraltar, or Morocco, or Jersey or Guern-
eey, and they inform themselves by having the law stated to them." And see Male
V. Roberts, r>Esp. 1(53 (1802).

2 Du Val c. Marshall, 30 .Vrk. 230 (1S75).
8 9 Anne, c. 14.

* Tatman v. Strader, 23 111. 493 (ISCO) ; see, Shorpshire r. Glasscock, 4 Mo. 536.

24

370 PRESU^IPTIYE EVIDENCE. [rULE 82.

RULE S3. — The term "law" within Rule 78 is re-
stricted to the common law of the forum, or the com-
mercial law (A) and does not include the statute law
of the forum ^ (B).

Illustrations.

I. An action is brought in Massachusetts to recover a payment of
freight made in advance to an owner of a ship for freight. The charter
party was made in Scotland. The common law of England is that a pay-
ment of freight in advance can not be recovered back. The common law
of Massachusetts is different. The presumption is that the law of Scot-
laud is like that of Massachusetts.'^

*' The charter party in the case before us," it was said in
easel., " was made in Scotland, and is therefore a contract
to be governed by the law of Scotland, if that law differs
from the law of Massachusetts, and not of the law of this

1 Donegan v. Wood, 49 Ala. 242 (1873) ; Kinney v. Ilosea, 3 Harr. (Del.) 77 (1840) ;
Baughan v. Graham, 1 How. (Miss.) 220 (1835); Stale v. Twitty, 2 Hawks, 441 (1823);
Mason v. Wash, Breese, 16 (1822) ; Johnson v. Chambers, 12 lud. 102 (1859) ; Davis v.
Eogers, 14 Ind. 424 (1S60) ; Wakeman v. Marquand, 5 Mart. (N. s.) 270 (182C) ; Walker
V. Maxwell, 1 Mass. 103 (1S04) ; Lejjg v. Legg, 8 JIass. 99 (1811) ; Harper v. Hampton, 1
Harr. & J. 623 (1S05) ; Gordon v. Ward, 16 Mich. 363 (1868) ; Kermott v. Ayer, 11 Mich.
181 (1863) ; Crane v. Hardy, 1 Mich. 56 (1848) ; Leak v. Elliott, 4 Mo. 450 (1836) ; Hite v.
Lenhert, 7 Mo. 22 (1811) ; AVilson v. Cockrill, 8 Mo. 7 (1843) ; Seymour v. Sturgess, 26
N. Y. 135 (1862) ; McCulloch v. Norwood, 58 N. Y. 567 (1S74) ; Chapin v. Dobson, 78 N.
Y. 74 (1879) ; Locke v. Huling, 24 Tex. 311 (1859) ; Territt v. Woodruff, 19 Vt. 182 (1847) ;
Lincoln v. Battclle, 6 Wend. 476 (1831) ; Chanouie v. Fowler, 3 Wend. 173 (1829) ;
Holmes r. Brighton, 10 Wend. 75 (1833) ; Hull v. Augustine, 23 Wis. 883 (186S) ; AValsh
V. Dart, 12 Wis. 635 (1860) ; Kenyon v. Smith, 24 Ind. 11 (1865) ; People v. Lambert, 5
Mich. 356 (1858); Ramsey v. McCauley, 2 Tex. 190 (1849) ; Spawn v. Crummerford, 20
Tex. 216 (1857). Some cases seem to hold a different doctrine. Hickman v. Alpaugh,
21 Cal, 223 (1862) ; Hill v. Grigsby, 32 Cal. 55 (1867) ; Martin v. Hazard Powder Co., 2
Col. 597 (1875) ; Smith v. Smith, 19 Gratt. 545 (1869) ; Allen v. Watson, 2 Hill (S. C.),319
(1834) ; Bean v. Briggs, 4 Iowa, 464 (1857) ; Crafts v. Clark, 38 Iowa, 237 (1874) ; Harris
V. AUnutt, 12 La 465 (1838) ; Atkinson v. Atkinson, 15 La, Ann. 491 (ISGO) ; Conally v.
Eiley, 25 Md. 402 (1S66) ; Harper v. Harper, 1 II. & McII. 687; Gardner v. Lewis, 7 Gill,
377; Campbell v. Miller, 3 Mart. (N. S.) 149 (1821) ; Smoot v. Baldwin, 1 Mart. (N. 6.)
52S (1S23) ; Brimhall v. Van Campen, 8 Minn. 13 (1862) ; Crozier v. Hodge. 3 La. 358
(1832) ; Monroe v. Douglass, 5 N. Y. 452 (1851) ; Messner v. Lewis, 20 Tex. 219 (1857) ;
Green v. llugly, 23 Tex. 539 (1859) ; Rape v. Heaton, 9 Wis. 338 (1859) ; Sadler t>. Andcr-
Bon, 17 Tex. 245 (18.56) ; Cannon v. North Western Ins. Co., 29 Hun, 470 (1883) ; Rogesr
*. Hatch, 8 Nev. 35 (1872) ; Marsters v. Lash, 61 Cal. 623 (1882). As to interest on
money. Cooper v. Reaney, 4 Minn. 528 (1860); Desnoyer v. McDonald, 4 Minn. 515
(1800). The matter is regulated by statute in Kentucky. Thomas v. Beckman, 1 B.
Mon. 34 (1840).

« Chase v. Alliance Ins. Co. 9 Allen, 311 cl864).

EULE 82.] rRESUMPTIOXS CONCERNING FOREIGN LAWS. oTl

commonwealth. "We do not find that the precise point has
ever been expressly adjudicated by any Scottish court, nor
has any case been cited which is a direct authority in point.
Tlie defendants have relied in argument upon a series of
English decisions which are more or less at variance with the
decisions of this court upon the subject, and upon citations
of Scotch authorities to show that the mercantile law of
Scotland is generally the same with that of England, But
while wo can have no doubt that the decisions of English
courts would be regarded as of the highest authority by any
Scotch tribunal upon a question of commercial law, we do
not find that these decisions are binding" upon the courts
of Scotland. The question is not one of local jurisprudence
but of the construction and effect of a commercial contract
on which the rule adopted by any local tribunal if it seems
erroneous upon general principles, must be confined to the
jurisdiction within which it is made.^ The ge-neral doctrine
of the English cases, although they do not seem to be
wholly constituent or founded on any clear and uniform
principle, appears to be that a payment of freight in advance
can not be recovered back, unless it is made to appear
affirmatively that it was intended by the parties merely as a
loan. But as we do not regard these decisions as correct in
principle, we must treat them as indicating a local pecu-
liarity of English law, which is not to be extended beyond
the jurisdiction in which it is shown to have been adopted.
It appears to us inconsistent not only with sound principles
of construction in the interpretation of the contract to which
it applies, but also irreconcilable with the general principles
relating to affreightment which have been recognized by the
judges and approved text writers of Scotland.''

In /State v. Cobb- it was said : *' The bonds indorsed by
the State being made payable in Boston where, as we must
presume, the commercial law is unaffected by legislation,"

1 Wood f. Corl, 4 Mctc. 203; Cribbs v. Adams, 13 Gray, 507.
2&4 Ala. 157 (1379).

372 PRESUMPTIVE EVIDENCE. [kULE 82.

etc. In an Illinois case the court sa}* : "If it had appeared
upon its face, or had been shown by evidence that the
contract was made in another State or comntry, in the
absence of proof to the contrary we must presume that
there were laws in that country regulating trade, com-
merce, and the buying and selling of propert^^, and that
a sale may be made upon credit, and notes given by
purchasers, and that they were sanctioned by the local
law." ^ In a number of cases it has been held that in com-
mercial transactions the law of another State is presumed
to be the same as the law of the forum. ^ Thus, in every
State the presumption is that in every other State three
days grace is allowed on bills of exchange and promissory
notes. ^ In DoII/us v. Frosch,'^ it was held that the law of
New York as to days of grace on commercial paper would
be presumed to be the law in France.

B.

I. In a New York court a declaration of trust executed iu Michigan
is souglit to be enforced. Sucli trusts are enforceable in New Yorls:
by the provisions of a statute. There is no presumption that such
statute is in force in Michigan.*

II. In New York it is contended that a certain contract, void for usury
in New York is also void in Vermont where it was made. There is no
presumption that the statute concerning usury has been enacted in Ver-
mont.s

III. In an action brought iu New York, on a contract made in Penn-
sylvania, the plea was that it was void because not in writing. The pre-
sumption is that no writing was required in Pennsylvania, as none was
necessary at common law.''

IV. A parol contract to sell lands made in Illinois is sought to be
enforced iu Michigan. It is objected that to be valid it should be in

1 Smith V. Whitaker, 23 111. 367 (18C0).

2 Bcmis V. McKcnzic, 13 Fla. 5.")3 (1S70) ; Leavenworth v. Brockway, 2 Hill, 201
(1842) ; Cribbs v. Adams, 13 Gray, 597 (1859),

3 Wood V. Carl, 4 Mete. 203 (1842).
< 1 Denio, 307 (1815).

6 Throop V. Uatcli, 3 Abb. Pr. 27 (185C) ; Forbes v. Scannell, 13 Cal. 278 (1859).
• Pomeroy t». Ainsworth, 22 Barb. 113 (ISoG) ; Oily Savings Bank v. Bidwcll, 29
Barb. .325 (1859) ; MoCraney v. Alden, 40 Barb. 274 (1800).

I White V. Knapp, 47 Barb. 549 (1867) ; Uougutaliujj v. Ball, 19 Mo. 84 (1853).

EDLE 82.] rKESUMrXIONS CONCEnXIXG FOKEIGN LAWS. 373

writing. The presumption is that the laws of Illinois do not require
this.'

V. A. sues B. in Mis«!0uri for slander in saying that he had to leave
Indiana for "burning a barn." There is no presumption that " burning
a barn " was a crime in Indiana, and this not being proved the action will
not lie.'

VI. An action is brought in New York for damages ("given by statute
in that State) resulting from a death caused by negligence of a railroad
on the Isthmus of Panama in the Republic of New Grenada. The action
will not lie, for there is no presumption that such an amendment to the
common law is in force in New Grenada.^

VII. An action is brought in New York on a note made in Florida.
The defense is usury. It appears that t)y the laws of New York a con-
tract reserving more than seven per cent is usurious, and the note bears
eight per cent. The presumption is that it is valid in Florida.*

VIII. A note made payable in New York was sued on in Massachu-
setts. It was proved to have been made on Sunday. There is no pre-
sumption that a statute like that of Massachusetts is in force in New
York, and the note is valid.^

In case I. it was said: '< Do the statutes of this State or
does the common law as it existed in the absence of any
leo-islation or at the time of the separation of this country
from England, prevail in other States of the Union by pre-
sumption of law. There is a want of precision in the lan-
guage of some of the cases which would lead us to suppose
upon a cursory examination that our courts have intended
to decide that in the absence of any evidence of what the
laws of other States are, it will be presumed that they are
the same as the laws of this State, without distinguishing
whether the common law or a statute of the State should
give the rule. It will be conceded that our statutes have
no extra-territorial force, and as they can not have as the
statutes of this State any binding force out of this State,
the presumption must of necessity be that the other States
of the Union did at the same time that we acted upon the

1 Ellis t». Maxon, 19 Mich. 186 (1869).

2 r.uiuly V. Hart, 46 Mo. 462 (1870).

s Whiirord f. Panama R. Co., 23 N. Y. 465 (1861).
4 Culler r. Wriglit. 12 X. Y. 472 (1S60).
» Murphy r. Collins, 121 Mass. 6 (1876).

374: PRESUMrxivE EVIDE^•CE. [kule 82.

subject make the same changes in the law which we did, if
we come to the conclusion that the statute laws of all the
States are presumed to be the same as our own. This
would be a presumption violent in the extreme as a pre-
sumption of fact and should not be entertained except
upon the clearest authority. It is well established that
the common law is presumed to have originally existed
in the states of the Union except perhaps in those which
had before becoming members of the Union been subject
to another code and system of laws, and it is a well
established presumption of law that things once proved
to have existed in a particular condition, continue in the
condition until the contrary is established by evidence
either direct or presumptive. Each State having the sole
power to legislate for itself and change the common law
therein by act of the Legislature it would seem to follow
that until there were some proof that the common law had
by legislation ceased to be the law of the land it would be
presumed to be in force. I see no foundation for the pre-
sumption that because one State has seen fit to dispense
with the rules of the common law and provide others for
the government of its citizens upon a given subject, the
Legislature of every other State has been like minded. I
speak now of those matters which are known to, and in the
absence of an overruling statute are governed by, the com-
mon law. There are matters in relation to which the
common law does not speak, which are regulated solely by
statute, and in regard to some of these matters it is not
impossible that our statute may be presumed to be the same
as those of the other States or rather the laws of other
States, in the absence of evidence, presumed to be the same
as those of our own."

And in a case very like case I., but decided one year
later,^ it was said: *' The true rule assumes to be founded
on a probabilitv that it will lead to the actual truth, and is

1 Wright V. Delaflcia, 23 Barb. 403 (1357).

RULE 82.] PRESUMPTIONS COXCi'IKNIXG FOREIGN' LAWS. 375

not a technical rulo forced upon courts against their con-
viction of what is right. Until the contrary is proved it
is more likely to be true than false that the laws of another
State arc the same as ours, as to contracts relating to per-
sonal estate and as to commercial matters particularly ; and
that when the common law is known to prevail, it is construed
there as it is with us, whether relating to lands or personal
property. So, also, interest is now considered as much an
incident to a loan of money as rent is to the letting of a
house or lands. It is, therefore, an assumption mo.-t com-
patible with truth that interest at some rate is allowed in
every State. Although the rate of interest therefore is
fixed by statute, yet as some rate is universal, our courts
must allow some rate ; and if the parties furnish no better
guide to the truth, the court assumes ours to be the legal
interest in computing the amount to be recovered. But
when we introduce what we know to be a new law (as is
our statute; respecting trusts, it would be a perversion
of reason to pretend to infer that as soon as we placed the
new law on our statute book every other State in the Union
would adopt the same law. Slavery was abolished here in
1826. It would be a bold proposition that we should infer
that it was thenceforth abolished in all the other States in
which it was proved to have previously existed. Within
the present century we have adopted laws giving priority
to conveyances of lands according to the order of time in
which they are recorded; creating liens in favor of me-
chanics; at one time making banking a monopoly, after-
wards opening it to all under certain restrictions. Many
of the States have by express statute adopted similar laws.
He would be a very unwise man who, inferring that our
sister States had conformed their laws to ours, should
make his investments accordingly. And it would be no
less unwise and unjust in a court to make the same infer-
ence and on it to determine the rights of parties. Any
conclusion which shocks reason and common sense can not
be founded on correct rules of evidence."

376 PRESUMPTIVE EVIDENCE. [llULE 82.

In case III. it was said : "Assuming that the contract is
void in consequence of not being in writing, it is so by rea-
son of the statute of frauds of this State. By the common
law it was a valid contract, and there is no evidence that by
any statute of the State of Pennsylvania such a contract was
required to bo evidenced by writing. We are not at lib-
erty to indulge in any presumption as to what the legisla-
tion of another State or country has been or what statutes it
may have enacted. To presume that the statute law of
another State is the same as that of our own, would be, as
it seems to me, the height of absurdity. In a given case
the statutes may be and they may not be similar to ours.
If they are and a party wishes to avail himself of them in
the courts of this State, it is a very easy thing to prove it.
That we have a particular statute containing particular pro-
visions is not any evidence, not even prima facie^ that
another State has a statute with like provisions. Were it
otherwise it would follow that we are bound to presume
that every one of our sister States has enacted all the gen-
eral laws contained in our massive tomes of session laws;
and by the same rule the courts of each State would be
bound to presume the same thing in regard to the statutes
of each of the other States. The rule, as I have always
understood it to exist in this State, is that where there is no
evidence to the contrary it will be presumed that the com-
mon law is in force in each of the other States, except pos-
sibly the State of Louisiana, and that no such presumption
will prevail in regard to statute or written law. If the com-
mon law has been abrogated, changed, or modified by a
statute of another State it must be proved."

In case IV. it was said: "A parol contract to sell lands
was good at common law. It is only made void by statute.
If we should make any presumption in the absence of evi-
dence, as to the provisions of any foreign laws, it would be
that they conform in substance to the general principles of
the common law. How universally we could make such a
presumption it is not necessary to consider. We certainly

RULE 82.] PRESUMPTIONS COXCERNIXO rOREIGN LAWS. .077

can not prcsinnc that the Legislature of another State has
adopted all of our statutes, and therefore, we mutt have
proof before we can know that they have passed any stat-
ute."

In case V. it was said: '* It may be said that the courts
of each State should assume all acts to be criminal in other
States that are made so by the statutes of their own State,
but this would be an assumption not only contrary to the
traditions and practice of courts, but contrary also to the
known fact ; and if it be also said that burning a barn is a
crime of such moral turpitude that we should assume it to
bo a punishable offense, that must depend upon circum-
stances. If the charge involve such a burning as to make
it by our statute arson in the first or second degree, the
remark would apply, for that would be a crime at common
law, and no foreign statute need be alleged or proved. But
many of our Western barns are in the open field and of
trilling value, some being built of poles aud straw ; and
their destruction would involve less of the moral elements
of crime than some mere trespasses."

In case VI. it was said: *'The courts do not in irencral
take notice of the laws of a foreign country, except so far
as they are made to appear by proof. In the absence, how-
ever, of positive evidence as to the law of another country,
our laws indulge in certain presumptions. Prima facie, a
man is entitled to personal freedom and the absence of
bodily restraint, and to be exempt from physical violence
to his person everywhere. Hence, if one bring a civil
action for false imprisonment, or for an assault and battery
committed abroad, he need not in the first instance, offer
any proof that such acts are unlawful and entitle the
injured party to a recompense in damages in the place where
they were inflicted; for the courts will not presume the
existence of a state of law in any country by which com-
pensation is not provided for such injuries. And where the
condition of the law of another State becomes material, aud

378 PRESUMPTIVE EVIDENCE. [rULE 82.

no evidence has been offered concerning it, our courts will
presume that the general principles of the common law
which we always consider to be consonant to reason and
natural justice prevail there. But no such presumption
prevails respecting the positive statute law of the State.
There is generally no probability in point of fact, and
there is never any presumption of law that other States or
countries have established precisely or substantially the
same arbitrary rules which the domestic Legislature has
seen fit to enact. In applying these remarks to the pres-
ent case, we are brought to the conclusion that the statutes
under which this action is instituted do not, so far as we
know or can assume, form any portion of the law of New
Granada where the facts constituting the supposed cause of
action occurred. These statutes have introduced a princi-
ple wholly unknown to the common law, namely, that the
value of a man's life to his wife or next of kin, constitutes
with a certain limitation as to amount, a part of his estate,
which he leaves behind him to be administered by his per-
sonal representatives. The contrary doctrine, to wit, that
a cause of action existing for such a wrong in favor of the
party injured dies with him, and forms no part of the suc-
cession to which his wife and kindred are entitled, was so
well established as to form one of the standing maxims of
the law."

In case VII. it was said: "As the rate of interest
inserted in the note exceeds the rate allowed in this State,
the defendant's counsel insists that the note is prima facie
usurious. He relies upon the ordinary presumption that the
laws of a foreign State, nothing being shown to the con-
trary, corresponds with our own, and claims that it was
incumbent upon the plaintiff to repel this presumption by
proof that the law of Florida allowed interest at the rate
mentioned in the note. I doubt whether the presumption
relied upon extends to a case of this kind. Our statute of
usury is highly penal. It forfeits the entire debt. At

\

RULE 83.] PKESUMPTIONS CONCERNING FOREIGN LAWS. 879

common law the contract would be perfectly good. "We
are not, I think, called upon to presume that forei<;u States
have adopted all our penal legislation."

" The contract," it was said in case VIII., *' was not void
by the conmion law, and there is no presumption that the
law of another State corresponds with a statute of this com-
mon wealth."

*' In the absence of any proof to the contrary, we must
presume that [the English common law] without any modi-
fications other than such as was " produced by our Revolu-
tion and by our political institutions in general, still prevail
in (another) State. Such modifications as may have been
made by her legislative acts, can not be judicially known to
us and must be shown by proof." ^

RULE 83. — And a rule of the common law to ^liicli
exceptions have heen made by the courts will not bo
presumed to be in force intact in the foreign State or
country.

Illustration.

I. An action was brought in Maine by A. against B. for a quantity of
salt placed in a store in New Brunswick. It appeared that the salt had
been seized for rent. The court will not presume that all property in
New Brunswick, placed on the laud of another is liable to be taken for
rent in arrear.'

In case I. it was said that the courts of this State could
not presume that a rule of the common law to which so
many exceptions had been made in favor of trade and com-
merce, was in force in its original vigor in another country.
" There are many and important exceptions to the general
law of distress, made in favor of trade and commerce. In
a case in which the whole doctrine was much examined, it
was decided that goods of the principal in the hands of his

1 Ne-wton v. Cocke, 10 Ark. 109 (1340).

' Owen V. Bogle, 15 Me. 117 ; 32 Am. Dec. 143 (1S38) ; Smith v. GoalU, i Moore P. C

i (1842).

380 PREsmiPTivE EVIDENCE. [rule 83.

factor were not liable to be distrained for the factor's rent.^
For like reasons it has been held that property deposited
for a broker in a warehouse upon a wharf for safe cus-
tody to wait an opportunity to sell, was not liable to be
distrained for rent due from the wharfinger.^ And the same
rule of exemption has been decided to apply to goods in a
common warehouse.^ This is not the proper occasion to
examine into the extent of the exception in favor of trade
and commerce, further than to show that it may be impor-
tant to a just decision of the rights of these parties that the
law should be proved by those who are competent to speak
with a full knowledore of it."

1 Oilman v. Eaton, 3 Brod. & B. 75.

2 Thompson v. Mashiter, 1 Bing. 283.
» Mathias v. Mesnard, 2 C. & P. 353.

CHAPTEE XYII.

THE PRESUMPTIONS FRO:\r THE ALTERATION OF IN-
STRUMENTS.

RTJLiE 84. — Alterations, erasures and interlineations
appearing on the face of Avritingrs, whether under seal
or not, are presumed to have been made before their
execution or completion.^

Illustrations.

I. A deed is produced by the grantee. There is an erasure in the
description clause and another in the covenants. The erasures are pre-
sumed to have been made by the parties or the scrivener before the deed
was executed and delivered. ^

II. A will is produced for probate. There is an alteration in the name
of one of the legatees. It is presumed that this was made before it was
signed.*

III. B. sues C. on a promissory note made by C. There is an altera-
tion and erasure in the amount payable. These are presumed to have
been made before it was siuiued.'

1 Cumberland Bank v. Ilall, 6 N. J. L. 215 (18S2) ; Commissioners r. Hanion, 1 N. &
McC. 5r>4 (1810); Rankin v. Blackwell, 2 Johns. Cas. 193 (1801); Runnion v. Crane. 4
Blackf. 466 (1S3S) ; Conunercial Bank v. Luni, 7 How. (Miss.) 414 (1843) ; Uced v. Kemp,
16 111. 443 (185.^) ; Joudcn v. Boyce, :« Mich. 302 (1S7G) ; Stevens v. Martin, 18 Pa. St.
101 (1851) ; Little v. Ilerndon, 10 AVall. 31 (186'.)) ; Malarin r. United States, 1 Id. 283
(1863); Smith v. United States, 2 Id. 232 (18C1) ; Ramsey v. McCue, 21 Gratt. 349
(1871); Matthews v. Coalter, 9 Mo. 705 (1846) ; McCormick v. Fitzraorris, 39 /</. 21
(186G) ; Acker v. Ledyard, 8 Barb. 614 (ISoO) ; Gooch v. Bryant, 13 Me 3G5 (1S3G) ; Crab-
Iree v. Clark, 20 Me. 337 (1841) ; Clark v. Rogers, 2 Id. 147 (1832) ; Wickes v. Caulk,5
II. & J. 41 (1S20) ; Miliken r. Martin, 66 111. 13 (1S72) ; Putnam v. Clark, 27 N. J. (Eq.)
412 (1878); Wikoff's Appeal, 15 Pa. St. 218 (1850); Ely r. Ely, 6 Gray, 430 (1856),
In Louisiana erasures and interlineations are presumed to be false or forged,
and must be accounted for by the party setting up the instrument. McMicken
V. Bcauchanip, 2 La. 200 (1*51) ; Pipes r. Ilardesty, 9 La. Ann. lr,1 (1854). An impos-
eible dale raises a presumption of ante or post dating — not of alteration. Davis v.
Loftin, 6 Tex. 400 (1851).

* Cases cited in last note.

» Id.; Graham v. O'Fullon, 4 Mo. 607 (1537).

* Id.

(381)

382 PKESUMPTR-E EVIDE^'CE. [RULE 84.

IV. Oil the face of au assessment an erasure appears. The presump-
tion is that this was made before it was signed. i

Y. There is an alteration in the minute book of a corporation. The
presumption is that it was made before tlie book was signed.^

VI. There is an alteration in the return made by an officer, it appear-
ing to have been first written that a notice had been posted in two public
places, the word " two" being altered to "the" in the same hand and
ink. The presumption is that this alteration was made before the sign-
ing of the return. 2

VII. A blank in a note was found to have existed at its delivery and to
have been subsequently filled. The presumption is that it was filled by a
person having the legal custody of it.*

VIII. An action is brought on a contract to indemnify A. on certain
notes made on March IGth. The contract is also dated March ICth, but
when produced it is seen that the figures "16 " describing the notes have
been written over the figures " 15," aud in the date of the instrument
the figures " 16 " have been written over the figures " 17." The presump-
tion is that these alterations were made at the time of its execution and
the contract is admissible.

In the early history of the common law the judges exam-
ined the question themselves, and if the deed or other
instrument appeared to be interlined they refused to admit
it. Subsequently this practice was altered, and the ques-
tion whether the alteration was made before or after the
delivery of the deed was left to the jury. And finally the
presumption of law was raised that the alteration had been
made before the delivery, on the ground that any other
view would be a presumption in favor of fraud and for-
gery.^ In the United States the rule, except in one State,
seems to be well established that the presumption will be
in favor of the validity of the instrument. In a Georgia

1 Xorth River Meadow Co. v. Shrewsbury Church, 22 N. J. L. 427 (1850).

s Stevens Hospital v. Dyas, 15 Ir. Eq. (N. S.) 405 (1803).

8 Boothby V. Stanley, 34 Me. 515 (1S52). "Fraufl," said the court, "cannot be
presumed unless the ordinary rules of presumption of honesty and innocence be
disregarded. The alteration of any legal instrument in the absence of proof or sat-
isfactory explanation to the contrary, should be presumed to have been made sim-
ultaneously with the instrument or before its execution."

* Ingllsh V. Breueraan, 9 Ark. 122; 47 Am. Dec. 735 (1848).

6 Beaman v. Russell, 20 Vt. 205; 40 Am. Dec. 775 (1848).

« Tatum V. Catamore, 16 Q. B. 745 (1851).

EULE 84.] ALTERATION OF IXSTRUilENTS. 383

case it was said: '< The rule may now be thus stated: An
alteration of a written instrument, if nothing appears to
the contrary, shouhl be presumed to have been made at the
time of its execution. But generally the whole inquiry,
whether there has been an alteration, and if so whether in
fraud of the defending party or otherwise, to l)e determined
by the appearance of the instrument itself or from that
and other evidence in the case is for the jury.^

In case VIII. it was said: "Amidst the conflict of author-
ities in this country, and with the little aid that can be
derived from the modern English cases, I should bo dis-
posed to fall back upon the ancient common law rule —
that an alteration of a written instrument, if nothing appear
to the contrary, should be presumed to have been made at
the time of its execution. I think this rule is demanded
by the actual condition of the business transactions of this
country, and especially of this State — where a great por-
tion of the contracts made are drawn by the parties to them,
and without great care in regard to interlineations and alter-
ations. To establish an invariable rule, such as is claimed
in behalf of the defendant, that the party producing the
paper should in all cases be bound to explain any alteration
by extrinsic evidence, would, I apprehend, do injustice in
a very great majority of the instances, in which it should
be applied. Such a rule might be tolerated — might per-
haps be beneficially adopted — in a highly commercial
country, like that of Great Britain, in regard to negotiable
paper, which is generally written by men trained to clerical
accuracy, and is upon stamped paper, the very cost of which
would induce special care in the drawing of it ; but I am
persuaded its application here could not be otherwise than
injurious. It is not often that an alteration can be ac-
counted for l)y extraneous evidence; and to hold that, in
all cases, such evidence must be given, without regard to
any suspicious appearance of the alteration, would, I think,

1 Printrup v. Mitchell, 17 Ga. 5G4 (1855).

384 PRESLTMPTIVE EVIDENCE. [eULE 84.

in many instances bo doing such manifest injustice, as to
shock the common sense of most men."

" In this conflict of opinion," says Woodruff, J., after
an exhaustive review of all the authorities, " it appears to
me the sensible rule and the rule most in accordance with
the decisions of our own State, is that the instrument, with
all the circumstances of its history, its nature, the appear-
ance of the alteration, the possible or probable motives to
the alteration, or against it, and its effect uj^on the par-
ties respectively, ought to be submitted to the jury; and
that the court can not presume from the mere fact that an
alteration appears on the face of the instrument, whether
under seal or otherwise, it was made after the sign-
ing. Some alterations may be greatly to the disadvantage
of the holder or party setting up the instrument. Shall it
be presumed that he made them unlawfully against his own
interest ? Others may be indiiferent as to him, and favor-
able to some other. No presumption in such case can
exist against him." ^

There are, how^ever, to be found cases which conflict
•with the rule above laid down. In Jackson v. Osborn,'^
the trial judge ruled that where there was an erasure or
alteration in a deed the presumption of law was that it was
made before the execution of the deed, and that it was
incumbent on the party seeking to iuvalidate the deed to
show that the alteration had been improperly made. On
appeal this was held to be error. The court said: "Mr.
Phillips in his treatise on Evidence^ says : * If there is any
blemish in the deed by rasure or interlineation, the deed
ought to be proved, though above thirty years old, and the
blemish satisfactorily explained. In such a case the jury
would have to try whether the rasure or interlineation was
before or after the delivery of the deed ; for if the rasure
was before that time the deed is still valid. It is only after

1 Maybce v. Sniffcn, 2 E. D. Smith, 1 (1851).
a 2 Wend. 533 ; 20 Am. Dec. Gi9 (1820).
« 7 Vol. p. 405.

RULE 84.] ALTERATIOX OF INSTRUMENTS. 385

the delivery that a rasure or interlineation can efTect a deed,
and even then they are in sorao cases immaterial.* Mr.
Justice Butler in his treatise ^ also says that a rasure or
interlineation in a deed is a suspicious circumstance which
will make it necessary even in the case of a deed of thirty
years' standing, for the party to prove the deed by the wit-
nesses, if living, or if dead, by proving their handwriting
and the handwriting of the party, in order to encounter the
presumption arising from the blemishes in the deed. "When
nothing appears but the fact of an erasure or interlineation
in a material part of the deed of which no notice is taken
at the time of the execution, it is a suspicious circumstance,
which requires some explanation on the part of the plaintiff,
but whether the explanation is satisfactory or not is for the
jury to determine." In Wilsony. Henderson,'^ it was said;
*' It is a presumption of law that any material alteration of
a note, appearing upon its face, was made after it goes
into the hands of the payee, and is it for him to show that
it was made under circumstances which sustain it? The
authorities are both ways, and hence it is difficult to extract
from them the true rule. The question was very fully con-
sidered in the Supreme Court of Connecticut in the case of
Ballet/ V. Taylor,^ \n which the evident leaning of the decis-
ion is against the presumption. Still it may be doubted
whether the authorities cited by the court would not have
better sustained an opinion the other way. The court said
circumstances may be such as may require an explanation
from the plaintiff. This is surely true, and it must be also
clear that the whole question of alteration is for the jury.
It is for them to determine whether it was made before, or
after delivery, or whether it was with or without the con-
sent of the maker. Assuming that the law presumes that
any alteration appearing on the note was made after deliv-
ery, such presumption must be very much weakened, if not

1 p. 255.

a 9 S. & M. 375 ; 48 Am. Dec. 716 (184S).

8 11 Conn. 531.

386 PRESUMPTIVE EVIDENCE. [rULE 84.

destroyed, when the alteration operates prejudicially to the
holder."!

In an early case in Pennsylvania Chief Justice McKean
had ruled that an interlineation in a deed would be pre-
sumed to have been made after its execution.'^ But this
decision is no longer law in that State, all the subsequent
cases leaving it to the jury to decide on the evidence whether
the alteration was made before or after the execution.^

In Ohio it is laid down that where an alteration appear-
ing on the face of an instrument is not peculiarly suspicious
and beneficial to the party seeking to enforce it, the altera-
tion will be presumed to have been made either before exe-
cution or by agreement of the parties afterwards.*

In Burnliam v. Ayer^ it is said: "Although a different
rule prevails in other jurisdictions, it has been holden, and
may be regarded as settled, in this State, that in the absence
of evidence or circumstances from which an inference can
legitimately be drawn as to the time when it was actually
made, every alteration of an instrument will be presumed to
have been made after its execution." The instrument in
this case was a deed and the alteration was in the description.

In lUU V. Barnes,^ the date in a note which had orisrin-
ally been written May 4 had been altered to April 4. No
evidence when the alteration was actually made was given,
but a verdict for the plaintiff was taken by consent, su])ject
to the opinion of the higher court. The Supreme Court
ordered a new trial. "In the absence of all evidence,"
said Parker, C. J., " either froi;n the appearance of the note'
itself, or otherwise, to show when the alteration was made,

1 And see Heffner v. Wenrich, 32 Pa. St. 423 (1S50) ; Hill v. Coolev, 46 Pa. St. 259
(1863).

= Morris v, Vandercn, 1 Dall. 67 (1782). And Pee Paine v. Edsell, 19 Pa St. 178
(1852) ; I'revost v. Gratz, Pet. C. C. 304 v':816) ; Taylor v. Crowninsliielil, 5 N. Y. Leg.
Obs. 209(1816),

3 Stahl I'. Berger, 10 S. & R. 171 (18J3) ; P.abb v. Clemson, Id. 424 (1823) ; Barrington
V. Bank of Washington, 14 Id. 422 (1820) ; irclUinger r. Shutz, 10 Id. 46 (1827) ; Iludson
V. Reel. 5 Pa. St. 279 (1S47) ; Vanhorne v. Dorrance, 2 Dall. 306 (1795).

* Huntington v. Finch, 3 Ohio St. 445 (1854).

* 35 X. H. 351 (1857).
« UN. II. 395 (1840).

RULE 84." ALTEKATION OF INSTRUMENTS. 3S7

it must bo presumed to have been made subsequent to tlie
execution and delivery of the note. This rule is necessary
for the security of the maker, Avho must otherwise take evi-
dence of the appearance of the note when it is delivered, in
order to protect himself against alterations subsequently
made without his privity." And the case was followed in
HumpJireys v. Guilow,^ decided in 1843.

Two exceptions to Rule 84 obtain in the English courts
for reasons in one case never, and in the other hardly ever,
applicable here. Alterations and interlineations appearing
on the face of a will are presumed to have been made after
its execution. The presumption is made by the court for
the purpose of carrying out more effectually the provisions
of the Wills Act, which makes void all obliterations, inter-
lineations or other alterations in a will after execution
unless affirmed on the margin and attested by witnesses. -
Nevertheless in some of the more recent cases the English
judges have shown an inclination not to make any presump-
tion even here. In William v. As/don,^ Wood, V. C, said :
" I find numerous alterations in this will, as to which the
only information afforded by the testatrix is that she said
she had made alterations without specifying what the altera-
tions were which she had so made. I do not think that it is
quite a correct mode of stating the rule of law to say that
alterations in a will are presumed to have been made at one
time or at another. The correct view, as enunciated in the
case of Doe y. Palmer,^ is that the onus is cast upon the
party who seeks to derive an advantage from an alteration
in a Avill to adduce some evidence from which a jury may
infer that the alteration was made before the will was exe-
cuted. I do not consider that the court is bound to say

1 13 N. H. 3S5.

2 Grcville t-. Tyler, 7 Moore P. C. 320 (1851) • Cooper v. Brockett,4 Id. 4U (1844) ;
Tatuin f. Catamore, IC Q. B. 745 (1S.')1) ; Shallcross v. Palmer, 15 Jur. 8:;.! (ISoi) ;
Taylor v. Mosely,6 C. & P. 27^! (1S3:J) ; Cliristnias r. Wlionyates, 3 Swab. & Tr. si
(18C-2) ; Simmons v. Rudall, 1 Sim. (N. S.) VM (1S50) ; Buck v. Buck, 6 Ecc. & Mar
681 (IS-JS) ; Ko DufTy. Ir. Hep. 5 Eq. 50G (1S71).

s JohiTS. &M. 115 (1860).
* IG Q. B. 717.

388 PRESUMPTIVE EVIDENCE. [rULE 84.

that it will presume such alteration to have been made either
before or after execution. With regard to a will, I do not
see any necessary presumption of the kind. As to a deed,
a presumption is considered to exist that alterations have
been made before execution, because if you presume them
to have been subsequently introduced 30U presrflne a crime ;
but even that view has only recently been adopted. With
respect to a will, this reasoning has no application. There
is no crime in a testator choosing to make alterations in his
own will, and all that can be said Avith respect to such
alterations as these is that we do not know when they were
made. Now a testator can not reserve to himself a power
of making future testamentary gifts by unattested instni-
ments. If a general statement by a testatrix that she had
made some alterations in her will were to give validity to
an}'- alterations found in the instrument after her death, that
would enable her at any time after such statement to make
as many unattested alterations as she pleased. I apprehend
the rule is that those who propound a doubtful instrument
must make the doubt clear. I can not tell what alterations
the testatrix made before attestation, or what interests
might be affected by alterations subsequently made. Not
being able to say which alterations are valid, I can not give
effect to any of them." ^

Secondly, in the case of bills of exchange and promissory
notes required by statute to be stamped, the English courts
make it incumbent on a party producing such an instrument
to explain any alteration before it can be introduced in
evidence.^ But, as pointed out by Hall, J.,^ there are rea-
sons for the ruling under the English Stamp Act which do
not apply in other cases. The object of the common-law
rule of proof is to protect one party against the fraud of

1 Anrl see Re Cadge, L. R. 1 P. & D. 543 (1868).

2 Johnson v. Duke of Marlborough, 2 Stark. 313 (1818) ; Bishop v Chambre, 3 C.
&P. 55 (1827) ; Knight v. Clements, 8 Ad. & El. 215 (1S3S) ; Clifford v. Parker, 2 Man.
& Gr. 910 (1841) ; Caress v. Tattersall, 2 Man. &Gr. 891 (1841) ; Andrrson v. Weston, 6
Bing. X. C. 302 (1810) ; Leykaulf v. Ashford, 12 ISFoore, 231 (1827) ; Sibley v. Fisher, 7
Ad. & El. 414 (1837) ; Ilcnman & Dickinson, 5 Bing. 183 (1828).

3 Bcuinan v. Russell, ante.

RULE 85.] ALTERATION OF IXSTRUMENTS. 389

another; that of the statute to protect the revenue from
the fraud of all parties. " If an alteration be against the
interest of the party claiming or bo apparently in the hand-
writing of the party defending, and in cither case were no
appearances calculated to excite a suspicion of an intended
fraud upon the latter party, it might be unjust to the party
claiming to cast upon him the burden of showing by extra-
neous evidence -when the alteration was made. But these
considerations can have no weight under the. Stamp Act.
The question under that statute is not by whom or how the
alteration was made, but merely the time when. One rule
of evidence might perhaps be necessary to protect the inter-
ests of the government, while another might be quite suffi-
cient for the preservation of those of the parties. And for
the detection of fraud upon the revenue and to prevent its
recurrence, a more stringent rule of proof may be required
in England by considerations of public policy than justice
to the parties would otherwise demand." And it is said
by the learned judge, in the course of his opinion in this
case, that the single question upon whom the burden of
proof devolves to account for an alteration in a written
instrument with reference to a supposed fraud upon the
party, has never been presented to the English court in any
of these cases. It has always been coupled with and been
overridden by the more extended question in regard to a
supposed fraud upon the revenue.

IIULE 85. — But where the alteration is in a different
handwriting from the rest of the instrument (A) ; or
in a different ink (B) ; or is in the interest of the party
setting it up (C) ; or is suspicious on its face (D) ; or
the execution of the instrument is denied under
oath (E), the burden of proof rests on the party pro-
ducing tlic instrument to explain it to the satisfaction
of the tribunal.

The authorities seem to be uniform on this point, viz.,
that when the alteration is suspicious on its face, and bene-

390 PRESUMPTIVE EYIDEXCE. [rULE 85.

ficial to the party setting it up, be must explain it to the
satisfaction of the jury.^

An alteration in a note after its delivery is presumed to
have been made by the payee, and the burden is on him to
show the assent of the maker. ^

Illustrationtt.

I. An action' is on a promissory note. The words, " -with interest at
eiglit per cent " seem to be added in a different hand. The burden
is on the plaintiff to explain the alteration.^

II. A sues B. as iudorser of a promissory note. The body of the note
is in B.'s handwriting. At the end of the instrument are the words,
" payable at the bank of Pittsburg." The court is requested, but refuses
to rule that this raises a presumption of alteration after its execution.
Held, error.*

In Cox V. Palmer,^ McCrary, J., after saying : " What is
the presumption in such a case ? Upon this question there
is an apparent conflict of authority. I think, however, it
is apparent only, and not real. There are cases in which it
has been held that an interlineation is presumably an unau-
thorized alteration of the instrument after execution, and
that the burden is upon the party offering the instrument
in evidence to show the contrary. There are also cases in
■which interlineations have been held to be prima facie bona
fide^ and that the burden is upon the party attacking the
instrument to show that it was altered after execution,"
says : "But I think that one rule governs in all these cases,
and it is this: If the interlineation is in itself suspicious, as
if it appears to be contrary to the probable meaning of the

1 Tillow V. Clinton Ins. Co., 7 Barb. 668 (1850); Ilerrick v. Malin,22 Wend. 3T3
(1S39); Croft v. White, 36 Miss. 455 (1S58) ; Clarlt v. Ecljstein, 23 Pa. St. 507 (18.54);
Kewcomb v. Prcsbury, 8 Mete. 406 (1844) ; Gillett v. Sweat, 6 HI. 475 (1844) ; Davis v.
Carlisle, 6 Ala. 707 (1844).

2 White V. Ilass, 32 Ala. 433 (1858).

3 Commercial Bank v. Lum, 0 How. (Miss.) 414 (1843) ; Bishop r. Chambre.S C.
&C. .55 (1827).

< Simpson v. Stackhouse, 9 Pa. St. ISC; 49 Am. Dec. 554 (1848).
6 1 McCrary, 331 (1380).

\

RULE 85.] ALTERATION OF INSTRUMENTS. 391

instrument as it stood before the insertion of intcrlinccl
words, or if it is in a handwriting different from the body
of the instrument, or appears to have been written "svith a
different ink — in all such cases, if the court considers the
interlineation suspicious on its face, the presumption will
be that it was an unauthorized alteration after execution.
On the other hand, if the interlineation appears in the same
handwriting M'ith the original instrument, and bears no evi-
dence on its face of having been made subsequent to the
execution of the instrument, and especially if it only makes
clear what was the evident intention of the parties, the law
will presume that it was made in good faith and before
execution."

In case II. it was said: *' Plow stands the question on
principle? The English decisions are founded in reason and
not on considerations growing out of the stamp acts. He
who takes a blemished bill or note takes it with its imper-
fections on its head. He becomes si)onsor for them and
though he may act honestly, he acts negligently. But the
law presumes against negligence as a degree of culpability ;
and it presumes that he had not only satisfied himself of the
innocence of the transaction, but that he had provided him-
self with the proofs of it to meet a security he had reason
to expect. It is of no little weight too that the altered in-
strument is found in his hands and that no person else can
be called on to speak of it; for, without a presumption to
sustain him, the maker would, in every case, be defenseless.
It may be said that the holder, with such a presumption
against him, would also be defenseless. But it was his
fault to take such a note. As notes and bills were intended
for negotiation and as payers do not usually receive
them, when clogged with impediments to their circulation
there is a presumption that such an instrument starts fair
and untarnished, which stimds till it is repelled ; and aholder
ought, therefore, to explain why he took it branded with
marks of suspicion which would probably render it unfit for
his purposes. The very fact that he received it is presump-

392 PRESOIPTIVE EVIDENCE. [rULE 85.

tive evidence that it was unaltered at the time ; and to say
the least his folly or his knavery raised a suspicion which
hcou'^ht to remove. The maker of a note can not be ex-
pected to account for what may have happened to it after
it left his hands; but a payee or indorsee who takes it, con-
demned and discredited on the face of it, ought to bo pre-
pared to show what it was when he received it. Now it is
ao-reed that the note before us was drawn and indorsed for
the accommodation of the maker who negotiated it, and who
consequently stands as if it had been drawn by the indorsee
and indorsed by himself, as it might just as well have been,
the difference being in the plan of the security and not in its
effect. It was distinctly proved that the body of the note
is in the handwriting of the defendant and that the words,
" payable at the bank of Pittsburg," are not. The differ-
ence in the character of the writing is obvious, and the
additional words are broken into two half-lines, for to have
comprised them in one would have required it to be run
through the signature and they were necessarily crowded
into the left hand corner at the bottom of the paper. That
is certainly not the ordinary collocation of the lines of a
commercial instrument. Mr. Chitty says in his Treatise on
Bills,^ that a drawee ought not to accept a bill which has the
least appearance of alteration ; and it was not disputed at
the trial that this note had that appearance, or that the al-
teration was in a material part of it, its effect being to dis-
pense with personal notice of dishonor. The question was
ontheo?n^s and the defendant prayed instruction that the
body of the note being in his handwriting, and the question-
able words being in a different hand, it was incumbent on the
plaintiff to show that they were in the instrument at the
time of indorsement, or with the defendant's consent; to
which the court responded that the jury must decide as a
matter of fact. The response was a refusal of the prayer
and a denial that there was any presumption to lead to a
particular conclusion."

1 p. 213.

EULE 85.] ALTERATION OF INSTRUMENTS. 393

B.

I. In an action on a writton guaranty the words "and company"
appear therein in a different ink and handwriting from tlie rest of the
instrument. The burden is on the plaintiff to show that this was done
before tlie instrument was executed.^

" "We are not prepared to say," said Mctcalf, eJ., in case
I., •' that a material alteration manifest on the face of the
instrument is in all cases whatsoever such a suspicious cir-
cumstance as throws the burden of proof on the party
claiming under the instrument. The effect of such a rule
of law would be that if no evidence is given by a party
claiming under such an instrument the issue must always
be found against him, this being the meaning of the ' burden
of proof.' But we are of opinion upon the authorities,
English and American, and upon principle, that the burden
of proof in explanation of the instrument in suit in this
case was on the plaintitf. It was admitted that the words
* and company ' which were interlined in the guaranty
were in a different handwriting from that of the rest of the
instalment, and also in different ink. In such a case the
burden of explanation ought to be on the plaintiff, for such
an alteration certainly throws suspicion upon the instru-
ment."

In Smi/h v. McGowan,^ it was said: "There is no
principle of the common law which requires a deed to be
written throughout with the same colored ink. The fact
that ink of dillerent colors is used may or may not aflbrd
evidence of a fraudulent alteration of an instrument. It
may often be an important item of evidence on that ques-
tion, and it may be consistent with the utmost honesty.
There is nothing in the fact, considered by itself, which will
require the court to exclude the instrument for that reason
as matter of law. It may be a proper consideration for

1 WiUlc c. Armsbr, r> Cash. 3U (1S50) ; Dayis v. Jenny, IMetc. 223 (1340). And see
Crablico v. Clark, 20 Me. 337 (1S41).
« 3 Barb. 400 (ISIS).

394 PRESUMPrm: evidence. [rule 85.

the jury in connection with other facts on the question of a
fraudulent alteration."

C.

I. A note was sued on dated in 1831. The date appeared to have been
altered from 1835. The burden was on the plaintiff to explain it.^

II. An action was brought on a bond dated November 11, 1821. The
defense was that the date had been altered from November 11, 1820. It
was not incumbent on the plaintiff to explain the alteration.^

In case I. the alteration was in the plaintiff's favor, for
it entitled him to four years' more interest than as it origin-
ally stood. In case II., on the other hand, the alteration
■was prejudicial to the plaintiff, for it deprived him of a
year's interest.

*' Formerly," it was said in case II., " the court judged
of an erasure by inspection ; latterly the jury do. In judg-
ino; by inspection the court governed itself, as jurors do
now, by probabilities in the absence of positive proof. If
the alteration on the erased part was in the handwriting of
the obligee or a stranger, and beneficial to the obligee, the
court adjudged it an erasure, that is an alteration, made
after the execution, and avoided the deed. If prejudicial
to the obligee, the court adjudged it no erasure, that is
made before execution, and did not avoid the deed. If in
the handwriting of the obligor either way, they adjudged it
no erasure, that the alteration was made before execution,
and did not avoid the deed. Juries are now governed by
the same rules. In the case before us the date of the bond
is altered, and it was made payable in 1821 instead of 1820,
as it is said is evident from the erasure not being complete,
as appears from an inspection of the deed, and the altera-
tion is in the handwriting of the obligee, and prejudicial to
the obligee, for he loses one year's interest. It is payable
from the date or from a fixed period from the date. One

1 Warren v. Layton, 3 Ilarr. (Del.) 404 (1840) ; Stoner v. Ellis, 6 Ind. 159 (1855).

2 PuUeu V. Shaw, ?, Dev. 2;8. And see Sayre v. Reynolds, 5 N. J. L. 737 (1820);
Coulsou V. Watson, 9 Tet. 98 (1835) ; Farlee v. Farlee, 21 N. J. L. 2S4 (1818).

RULE 85.] ALTERATION OF IXSTRUMENTS. 395

of the rules before mentioned, to wit, that if the alteration
is prejudicial to the obligee, though in his handwriting, it is
no erasure, determines this case, as it is presumed that the
alteration was made before execution. If the question was
to bo decided by the court, as formerly, wo should pro-
nounce it to be no erasure. In the absence of all evidence
dehors the deed the jury were properly instructed to pro-
nounce it so."

In Stoner v. Fills, '^ it was said: " Where the alteration
is of such a character as to defeat entirely the operation of
the instrument, for any purpose, as in case of the erasure of
the signature and seal to a deed, or other instrument, so
that admitting all to be true that appears, upon the in-
strument, when produced, it would be void in law, it should
be explained in the first instance, before it should be per-
mitted to go to the jury. In other cases, the instrument
should be given in evidence, and should go to the jury,
upon the ordinary proof of its execution, although an alter-
ation may appear in it, leaving the parties to make such
explanatory evidence as they may choose to offer. But if
there is neither intrinsic nor extrinsic evidence as to
when the alteration M'as made the presumption of the law
is, that it was made before or at the execution of the in-
strument. There are some considerations of public policy
which seem to us to have weio;ht in inducing this conclusion.
With us, the business of conveyancing does not pertain to
the Icg'd profession exclusively. Where estates are laro^e,
and lands are held by the comparatively few, titles are
seldom passed without great consideration, while with us the
ownership of lands in fee is almost universal, and real estate
is, like merchandise, a subject of trafBc. Deeds are drawn
by justices of the peace, and almost by any person of ordin-
ary intelligence, who will observe usually much less accu-
racy and precision than whore the business is in the hands
of a branch of the legal profession. The same may be

1 6 Ind. 159 (1855),

396 PEESUMrTivE EviDExcE. [rule 85.

said in reiTfird to all sorts of traffic so common amono; our
people, in which notes, agreements, and other contracts
are executed with little regard to professional accuracy.
To declare all these prijua facie fraudulent and void, we
are satisfied would be generally indulging in a presumption
against the facts, and that it would produce more injustice
than to hold them void."

D.

I. In an action on a bill of exchange the bill was produced by the
plaintiff. The upper left-hand corner of the bill was torn off, carrying
with it the word "second" as preceding the words "each for." The
printed word "second" in the body of the bill had black lines drawn
through it, and the word "only" written over it. The printed words
"first unpaid " had also black lines drawn through them. The burden
was on the plaintiff to explain this.^

In Dodge v. Haskell,'^ Peters, J., says : '* Where a plain-
tiff declares upon a note and offers it in evidence against
the maker, there is a burden upon him to satisfy the jury
that an apparent alteration of the note was made before
delivery. This arises from the general burden of proof
which the plaintiff has to sustain to show that the instrument
declared on is the genuine and valid promise of the defend-
ants. Therefore, if there is evidence each way upon a
question of alteration, the preponderance must be in favor
of the plaintiff. The jury are to be satisfied that a note
is genuine and not fraudulent. But the paper itself, un-
aided by other evidence, may satisfy the jury or it may
not. All depends upon circumstances. The alteration
may be immaterial, or comparatively so, or natural or
beneficial to the maker or made by the same pen and ink
as the l)ody of the instrument or in the hand writing of the
maker (where one maker), or in that of the witness to the
instrument, and in such cases it would not be suspicious.

1 Fontaine v. Gunther, 31 Ala. 2G4 (1857). And see Van Buren v. Cockburn, 14
Barb. 1 18 (1S52) ; Ridgcley v. Johnson, 11 Id. 540 (1851) ; Waring v. Smyth, 2 Barb. Oh.
11 (1847.)

2 69 Me. 429 (1879).

RULE 85.] ALTERATION OF INSTRUMENTS. 397

On the other hand the alteration may present indications of
fraud or forgery. AVhether it does or not is a question of
fact and not of hiw. It can not be a question of hiw to decide
^\hcthcr a note is in two inks or one or two handwritings
or one, or why so written. It is said that alteration ^r/wa
y*ac2e indicates fraud. It is sure that it does not in all cases.
On the other hand it is sure that fraud is not to be presumed.
But it would be extreme to say that an instrument might
not be so altered as to show upon its face the grossest at-
tempt at forgery. Therefore Avhat alteration or degree or
kind of alteration may exist M'ilhout being suspicious enough
to demand explanation is for the jury to settle."

E.

I. Suit was brought upon the following Instrument: "Brown City,
April 1, 1847. — Against the tenth daj- of July next, I promise to deliver
at the residence of James Short fifty dollars' worth of good cattle, to be
two years old past, not more than two shall be heifers, any number above
the fifty dollars' worth will (thirty dollars' worth of salable cattle shall
be delivered above the fifty $5 worth) be received on the house debt, all
to be salable cattle." The words in parenthesis bad been interlined.
The defendant, as required by statute, denied the execution of the instru-
ment uuder oath. The plaintiff was bound to explain the alteration. ^

In case I. it was said : *' Upon this point there is a con-
flict of the authorities. Some courts have held that if
nothing appears to the contrary, the alteration will be pre-
sumed to have been made contemporaneously with the
execution of the instrument. The reason given by the
courts that have so decided is that the law will never pre-
sume wrong, and to hold an alteration to have been made
after the execution of the instrument would be to presume
the holder guilty of forgery. This reason has no founda-
tion in this State, so far at least as relates to instruments
of writing upon which suits are brought or which are setup

1 Walters v. Short, 10 111. 252 (1848). But in a Texas case where the alteration
was not an apparent one (viz., following a blank), the burden of pioving tlii' aitcra-
tion — llie oxeciilion being (lonlfJ under oalh — was held to be on (he defendant.
Wells V. Moore, 15 Tex. 521 (1855) ; Muckleroy v. Bethany, 27 Id. 651 (1S64).

398 PRESOIPTIVE EVIDENCE. [rULE 85.

by "^ay of defense or set-off, the execution of which by the
fourteenth section of the eighty-third chapter of the Revised
Statutes a party is not permitted to deny, except on oath.
"When such a denial is made on oath, as in the present case,
the law would presume quite as great wrong in assuming
that the party making oath that the instrument was not his,
had been guilty of perjury, as in assuming that the holder
of the instrument had altered it after its execution." The
court in this case criticised the soundness of the rule inde-
pendent of the statute also.

In one of the latest cases the rule is laid down thus, viz. :
that where there is no dispute on the interlineation or alter-
ation, the presumption is that it was made before the
execution, but when a contest arises and the instrument is
offered in evidence, and the alteration is beneficial to the
party presenting it, the presumption of law is not the other
way (viz., that it was made after ") but the burden is on him
to explain it.

" When we look at a written instrument containing an
interlineation or erasure," said Woodward, J., " without
reference to contested rights, the natural and fair presump-
tion doubtless is that the alteration was made before signa-
ture, because if altered after execution it would be forgery,
which is never to be presumed. Instruments of writing
executed with the solemnities appointed by law are like the
men who made them, to be presumed innocent until some
circumstance is shown to beget a counter presumption. But
when a contest occurs, and the instrument is offered in evi-
dence, the question at once arises whether the alteration is
beneficial to the party offering it; if it be not, as in the
instance of a bond or note altered to a less sum, the imrna
/aae presumption is unchanged; if it be, as was the case
here, we do not presume a forgery, but we hold the party
ofl*erin2: it in evidence and seeking advantage from it bound
to explain the alteration to the satisfaction of the jury. The
initiative and burden of proof are thrown on him. If the
interlineation or erasure have been noted in the attestation

RULE 8.3.] ALTERATION OF INSTRUMENTS. 399

clause as having been made before signature, this is suffi-
cient, or if the simihirity of ink and handwriting, or the
conduct of the parties or other facts proved shall persuade
a jury that it was so made, the instrument is relieved from
suspicion, and the party offering it is entitled to the benefits
of it. So long as any ground of suspicion is apparent on
the face of the instrument, the law presumes nothing, but
leaves the question as to the time when it was done to bo
ultimately found by the jury upon proofs to be adduced by
him who offers the evidence."^

In Simpson v. Davis,- it was ruled that where a declara-
tion on a promissory note alleges that the defendant made
the note, and the answer denies this and alleges an altera-
tion, proof of the defendant's signature is prima facie
evidence that the whole body of the note written over it is
the act of the defendant ; but the burden of proof is on
the plaintiff to show that the note declared on was the note
of the defendant.

In Bailei/ v. Taylor,^ the court refused to rule that there
■was a presumption that an alteration of the amount of a
note had been made after its execution, saying: <'Tho
result to which we have arrived is that where there is an
erasure or alteration in an instrument under which a party
derives his title and the adverse party claims that such erasure
or alteration M'as improperly made, the jury are from all the
circumstances to determine whether the instrument is thereby
rendered invalid. Circumstances may be such as may
require this explanation on the part of the plaintiff or on
the other hand may arise where it would be absurd to
require it."

1 Jordan v. Stewart, 23 Pa. St. 216 (1S54).
« 119 Mass. 269(187(1).
» 11 Coim. 531 (1836).

PART IV.

PEESUMPTIONS IN THE LAW OF
REAL PROPERTY.

2G ( 401 )

I

CHAPTER XYIIL

THE PRESOIPTIONS FROM POSSESSION A^'D LAPSE

OF TIME.

RULiE 8G. — Wlicre it is shown that .any person has for
a long period of time exercised any jiroprietary right
which might Iiave had a lawful origin hy grant or
license from the puhlic or from a private i)erson, and
the exercise of whicli might and naturally would have
been prevented by the persons interested if it had
not had a lawful origin, the presumption arises that
sucli right had a lawful origin, and that It was cre-
ated hy a proper instrument which has been lost.^

Illustrations.

I. The question is whether B. is entitled to recover from A. the pos-
session of lauds which A.'s father and mother successively occupied from
175-i to 1793, and which B. had occupied without title from 1793 to 1809.

' Thus, a grant is presumed from lapse of time. Field v. Bro^\Ti, 24 Gratt. 74
(1873); Hardy v. McCullough, 23 Gratt. 2.31 (1873); Hooker v. Perkins, 14 Wis. 79
(ISGl) ; Hurst v. McNeil, 1 Wash. C. C. 70 (1S04) ; Uochell v. Holmes, 2 Bay, 4S7 (15^03) ;
Frost V. Drown, 2 Bay, 133 (170S) ; Williams v. Donnell, 2 Head, 095 (1S59) ; Marr v.
Gilliam, 1 Cold. 4S3 (ISGO) ; Grimes v. Bastrop, 2(j Tex. 310 (1S02) ; Taylor v. Walking,
26 Tex. G?3 (1S03) ; Rhodes v. Whitehead, 27 Tex. 304 (18G3) ; Walker v. Hanks, 27 Tex.
535 (1SC4) ; Farrer v. Merrill, 1 Me, 17 (18-JO) ; Tinkham v. Arnold, 3 Me. 120 (1S24) ;
Cheney v. Walkins, 1 H. & J. (Md.) 327 (1S04) ; Sparhawk r. Bullard, 1 Mete. 05 (1840) ;
Proprietors v. Bullard, 2 Mete. 363 (1841). As a deed. Hepburn r. Auld, 5 Cranch,
202 (ISOO) ; Weathevliead v. Baskerville, 11 How. 329 (1850) ; Townsend v. Downer,
32 Vt. 183 (1S.">0) ; Mclvin v. Locks and Canals, 17 Pick. 255 (1S35) ; Newman r. Studley,

5 Mo. 201 (1838) ; Blair v. Marks, 27 Mo. 579 (1858) ; Chiles v. Conley, 2 Dana. 21 (1834).
Or a lease. Sellick f. Starr, 5 Vt. 255 (1833). And title to proi)erty generally from
possession. Borough of Birmingham v. Anderson, 40 Pa. St. 507 (ISGl) ; Warner t".
flenby, 47 Pa. .St. 187 (1S64) ; W^illey v. Day, 51 Pa. St. 51 (1865) ; Youngman i: Linn,
62 Pa. St. 413 (18f;c>) ; Glass r. Gilbert, 58 Pa. St. 206 (1868) ; Duke v. Thompson, 16
Ohio, 35 (1*17) ; Society for Propagation of the Gospel r. Young, 2 X. H. 310 (1S20);
Wendell v. Blanehard, 2 N. H. 45G (1822); Thompson r. Carr, 5 N. II. 510 (1S31) ;
Cambridge r. Lexington, 17 Pick. 222 (18;i5) ; Fourth Parish r. Springfield, IS Pick.
319 (1830^ ; Frilz v. I'.randon, 78 Pa. St. 342 (1875) ; Jackson v. McCall, 10 Johns. 377;

6 Am. Dec. :U3 (ISl:'.) ; Fitzhugh r. Croghan, 2 J. J. Marsh. 429; 19 Am. Dec. 139
(1829) ; Valentino v. Piper, 23 Pick. 85; 33 Am. Dec. 715 (1839) ; Brown r. McKmney,

(403)

404 PEESUMPTIVE EVIDENCE. [rULE 86.

The uiKlisturbed occupation for thirty-nine years raises a presumption of
a grant by the crown to A.'s father.^

II. A fishing mill dam was erected more than one hundred and ten
years before ISol, in the River Derwent, in Cumberland (not being navi-
gable at that place), and was used for more than sixty years before ISGl,
in the manner in which it was used in 18G1. This raises a presumption
that all the upper proprietors whose rights were injuriously affected by
the dam had granted a right to erect it.^

III. Title to a fishery was in S. in 1748; partition of his estate was
had, and it was adjudged in 1754 to "the repi-esentatives of M., wife of
J.," subject to a ground rent. In 1805 E. and others, reciting that they
were heirs of J., conveyed to C. aninterest in the fishery. The presump-
tion is that C.'s title was good.*

TV. In 1778 J. A. conveyed a parcel of land described as "part of a lot
of swamp which D. S. bought of P. A." The laud was occupied under
this deed from 1778 to 1830. The existence of a deed from D. S. to J. A.
will be presumed.*

V. An agreement for the sale of a piece of land is made in 1689.
Parties under that agreement have occupied since. A jury in 1809, may
presume a conveyance pursuant to the agreement.*

VI. A grant of a stream of water or of a part thereof by fixed bound-
aries will be presumed to have been made by a deed, after an adverse
possession of twenty years.*

YII. A church is built on a tract of land, occupying a part thereof as a
burial ground for ninety years. This raises a presumption of a grant
from the State. ^

9 Watts, 565; 36 Am. Dec. 139 (1840) ; Berthelemy v. Johnson, 3 B. Mon. 90; 3S Am.
Dec. 179 (1842) ; Casey v. Inloes, 1 Gill. 430; 39 Am. Dec. 658 (1814) ; McCorry r. King,
3 Humph. 2J7; 30 Am. Dec 1G5 (1842) ; Farrow v. Edmundson, 4 B. Mon. 665; 41 Am.
Dec. 250 (1814) ; Budd v. Brooke, 3 Gill (Md.), 108; 43 Am. Dec. 321 (1845) ; Gathings
V. AVilliams, 1 Ired. (L.) 487; 44 Am. Dec. 49 (1845) ; Iloey v. Finnan, 1 Pa. St. 295; 44
Am. Dec. 129 (1815) ; Jackson v. Moore, 13 Johns. 516; 7 Am. Dec. 379 (1816) ; Alex-
ander V. Walter, 8 Gill, 237; .50 Am. Dec. 688 (1849) ; Claflin v. Malonc, 9 B. Mon. 4S6;
60 Am. Dec. 525 (1849) ; Lenoir v. Ralney, 15 Ala. 667 (1849) ; McCall v. Doe, 17 Ala.
533 (1830) ; Sparks v. Uawls, 17 Ala. 211 (1850) ; Barnes v. Moblcy, 21 Ala. 232 (1852) ;
Hobbs V. Bibb, 2 Stew. (Ala.) 54 (1829) ; Wilson v. Glenn, 68 Ala. 3S3 (1S80) ; Ilanford
V. Fitch, 41 Conn. 486 (1874) ; Crow v. Marshall, 15 Mo. 499 (1852) ; Colvin v. Worford,
20 Md. 358 (1808) ; Frantz v. Ireland, 06 Barb. 386 (1873).

1 Goodtitle V. Baldwin, 11 East, 483; see Devine v. Wilson, 10 Moore P. C. 502.

s LeconQeld v. Lonsdale, L. R. 5 C. P. 657.

8 Carters. Tinicum Fishing Co., 77 Pa. St. 310 (1875).

4 Eyder v. Hathaway, 21 Pick. 298 (1838) ; White v. Loring, 24 Pick. 319 (1837).

0 Jackson v. Murray, 7 Johns. 6 (1810) ; see Jackson v. Schoonniaker, 7 Jonns. 13
(1810) ; Jackson v. Sharp, 9 Johns. 105 (1812) ; Doe v. Campbell, 10 Johns. 475 (181,3).

« BuUcn V. Runnells, 2 N. II. 255; 9 Am. Dec. 55 (1820) ; Strickler v. Todd, 10 S. &
E. 63; 13 Am. Dec. 649 (1823).

' Malherv. Trinity Church, 3 S.&R. 509; 8 Am. Dec. 003 (1816).

RULE 8G.] rRKSUiimONS FRO.M POSSESSION. 405

Vlir. A person litis had the possession and use of an incorporeal hera-
ditaniunt for a lung time. The law presumes a graut to him of sueh
right. 1

IX. A person has had the control of an easement for a long time. The
graut of the easement is presumed from llie lapse of time.^

X. No claim of dowers is asserted on land for thirty-flve years. It Is
presumed that none exists.^

XI. A person has occupied certain land for forty j'ears. This raises a
presumption of the ouster of a co-tenant, if he had any at thebegiuuiug.*

XII. A road has been used for a long time. A dedication of it to the
public is presumed.*

In case III. the court reviewed the Pennsylvania cases at
length: "Presumptions arising from great lapse of time
and non claim," said Agnew, C. J., " are admitted sources
of evidence, which a court is bound to submit to a jury as
the foundation of title by conveyances long since lost or
destroyed. This is stated by C. J. Tilghman in Kingston
V. Leslie^ There the absence of all claim for years on the
part of a female branch of a family, represented by Hon-
oria Hermann, at an early day, was hold to constitute a
ground to presume that her title had been vested in the
male branch. Judge Tilghman remarked : ' I do not know
that there is any positive rule defining the time necessary to
create a presumption of a conveyance. In the case of
easements and other incorporeal hereditaments, which do
not admit of actual possession, the period required by law

1 Million V. Riley, 1 Dana, 359; 25 Am. Dec. 149 (1833) ; Arnold v. Ptevf>ns, 24 Pick.
106; 35 Am. Dec. 305 (1S39) ; Mitchell t;. Walker, 2 Aik. (Vt.) 26(3; 16 Am. Dec. 710
(1S27).

2 Hanson V. McCue, 42 Cal. 303 (1S71.). But the English doctrine of a presumption
of a grant or contract to the owner of land having an unobstructed llow of light and
air to his windows for twenty years has not been adopted in the United States.
Pierre v. Fernald, 2G Me. 436 (1847) ; I'arker v. Foote, 19 Wend. 309.

8 Uoss 1". Clore, 3 Dana, 189 (1S35) ; and see Breckinridge v. Walters, 4 Dana, 627
(1S36).

* Woolscy f. Morss, 19 Hun, 273 (1879).

6 Itosser r. Bunn, 66 Ala. 89 (1380) ; New Orleans, etc., R. Co. v. Jones, 63 Ala. 48
(1880). So a right of way is presumed from lapse of time (Lawton r. Rivers, 2 Mc-
Cord (S. C.) 445; 13 Am. Dec. 741 (1823) ; State r. Bunker, 59 Me. SC6 (1871) ; Com. v.
Low, 13 Pick. 409 (1826) ) and a right of water. Campbell v. Smith. 3 Ilalst. (X. J.)
140; 14Am. Dec. 400 (1825) ; Walkius v. Peck, 13 N. il. 360; 40 Am. Dec. 156 (1843).

e 10 S. & K. 3S3.

406 PKESUilPTIVE EVIDEXCE. [rULE 8G.

for a bar by the statute of limitations is usually esteemed
sufficient ground for a presumption.' This doctrine of
lapse of time is discussed at large by Justice Rogers in Reed
V. Goodyear} * The courts of law,' he remarks, * pay
especial attention to rights acquired by length of time.
Although it has been doubted (he says) whether a legal
prescription exists in Pennsylvania, yet the doctrine of
presumption prevails in many instances.' He quotes and
approves the language of Chief Justice Tilghman in Kings-
ton V. Leslie, in relation to presumptions in the case of
easements and incorporeal hereditaments, and adds : * The
rational ground for a presumption is where, from the con-
duct of the party, you must suppose an abandonment of
his right.' Among the cases ho cites one directly applica-
ble to a fishery : ' So a plaintiff had forty years' posses-
sion of a piscatory ; the court decreed the defendants to
surrender and release their title to the game, though the
surrender made by the defendant's ancestor was defective.' ^
Justice Sergeant said, in FouJk v. Broivn:^ < "We will not
encourage the laches and indolence of parties, but will pre-
sume, after a great lapse of tmie, some compensation or
release to have been made. Thus, length of time does
not operate as a positive bar, but as furnishing evidence
that the demand is satisfied. But it is evidence from which,
when not rebutted, the jury is bound to draw a conclusion,
though the court can not.' Again, he says: ' The rule of
presumption, when traced to its foundation, is a rule of
convenience and policy, the result of a necessary regard
for the peace and security of society. Justice can not
be satisfactorily done when parties and witnesses are
dead, vouchers lost or thrown away, and a new generation
has appeared on the stage of life, unacquainted with the
afTairs of a past age, and often regardless of them. Papers
which our predecessors have carefully preserved are often

1 17 S. & R. 352, 353.

2 Penrose v. Trelawney, cited in Vernon, 196.

3 2 Watts, 214, 215.

RULE 08.] PRESUMPTIONS FROM POSSESSION. 407

thrown aside or retained as useless by their successors.'
Acts of ownership over incorporeal hereditaments, corre-
sponding to the possession of corporeal, are deemed a foun-
dation for a presumption. * The execution of a deed,'
says Gibson, C. J., 'is presumed from possession in con-
formity to it for thirty years ; and why the entire existence
of a deed should not be presumed from acts of ownership
for the same period, which are equivalent to pos.scssion, it
would not be easy to determine.' ^ And said Black, C. J.,
in Garrett v. Jackson : ^ ' But when one uses an easement
whenever he sees fit, without asking leave and without objec-
tion, it is adverse, and* an uninterrupted enjoyment for
twenty-one years is a title which can not afterwards bo dis-
puted. Such enjoyment without evidence to explain how
it began, is presumed to have been in pursuance of a full
and unqualified grant.' This is repeated by Justice Wood-
ward in Pierce v. Cloud.^ See his remarks also in Fox v.
TJtomjison,^ that links in title are supplied from long and
unquestioned assertion of title. The same principles are
repeated by the late C.J. Thompson in Warren v. Henhy?
The necessity of relaxing the rules of evidence in matters
of ancient date was shown in Richards v. ElwelU^ a case of
parol bargain and sale of land, and possession for forty
years. The court below held the party to the same strict-
ness of proof required in a recent case. It was then said
by this court: * If the rule which requires proof to bring
the parties face to face, and to hear them make the bargain
or repeat it, and to state all its terms with precision and
satisfaction, is not to be relaxed after the lapse of forty
years, when shall it be? After a lapse of fifty or sixty
years it is not probable that any witness can be found above
ground to state anything. Shall wo wait for that period
before we begin to relax ? In the ordinary course of human
affairs forty years are almost as likely to carry the proofs

1 Taylor v. Donghcrty, 1 W. & S. 327. ♦ 7 Casey, 174.

» 8 IIaiTiSi,33.">. 6 12 Wright, 190.

» 6 Wright, 102-114. • 12 Wright, 61.

408 PRESUMPTIVE EVIDENCE. [RULE 80.

beyond the memory of living witnesses. It is contrary to
the presumptions raised in all other cases — presumptions
which are used to cut off and destroy rights and titles
founded upon records, deeds, wills, and the most solemn
acts of men. Based upon a much shorter time we have the
presumption of a deed, grant, release, payment of money,
abandonment and the like.' And again: * There is a time
when the rules of evidence must bo relaxed. We can not
summon witnesses from the grave, rake memory from its
ashes, or give freshness and vigor to the dull and torpid
brain.' The same principles are held in the following
cases. Turner v. Waterson,^ Hastings v. Wagner,^ Brock
V. Savaged The present case is stronger than any herein
cited. The title of Joseph Carter had its inception in
179G-97, and its full completion in 1805. Living witnesses
on the trial carried back his actual enjoyment and posses-
sion of this fishery upon the land now held by the defend-
ants, to the very beginning of this century. From that
time it has continued without challenge or denial by any one
claiming title under Mary Claxton or her heirs. That of
itself is sufficient to raise a presumption of any deeds,
grants or devolutions by descent to make a good title in
Joseph Carter to the fishery devised to David Gaudulier.
"VYhcn to this we add the proceedings in partition, and the
recitals in the deeds, together with the antecedent lapse of
fifty years from the time of the partition, all doubt van-
ishes as to the devolution of the title by regular steps to
Joseph Carter."

In case VI.* it was said : *< It is unnecessary to decide to
what extent and under what circumstances the occupation
of a stream gives to the first occupant a property in the
current, so as to prevent the owner of lands above him
from detaining, diverting or exhausting the water by any
erection, not leaving sufficient for all the beneficial pur-
poses to which it had been applied below, considered of

1 4 W. & S. 171. 2 10 Wright, 83.

2 7 Id. 215. 4 10 S. & 11. C3 ; 13 Am. Dec. CIO (1823).

RULE 80.] rnEsuMmoNS fro:m i'ossession. 409

itself and without regard to length of time, because in this
case there has been an enjoyment by the plaintifis, and those
under ■whom they claim, of this mill, in a particular way
and to an ascertained extent, for a time beyond which the
memory of man runneth not to the contrary. And if a
right could be acquired by prescription, this mill, from its
antiquity, ought to have all the privileges of an ancient
mill. Its existence and uninterrupted use may be traced
as far back as the first settlement of the country, from the
time most probably when the first Blunston's license was
granted, and when it Avas a frontier settlement. The man
who first erects a mill in a new country is considered as a
public benefactor, and no subject ought to be treated with
more tenderness, no possession more respected, commenced
as it was with the assent of all the proprietors of the adjoin-
ing tracts, and enjoyed, as it has been, without any inter-
ruption and with the approbation of all for near a century.
And if it were necessary to presume a grant of all the
water right necessary for its use, I would, Avithout hesita-
tion, instruct a jury to presume it. For the continued
acknowledgment, nay, the continued silence, of the ene-
mies of the right, of all whose interests were aflccted
by it, afford of themselves the strongest evidence of its
legal foundation, though nothing were found in any deed
respecting it. And I begin to think that the country has
been long enough settled to allow of the time necessary to
prove a prescription ; ^ and even prescription presupposes
a grant to have existed. But there is sufficient time, by
analogy to the statute of limitations, to protect the plain-
tiffs in their full enjoyment of the whole stream, and to
sustain this action for the disturbance of the right. It
is well settled that if there has been an uninterrupted
exclusive enjoyment, above twenty-one years, of water in
any particular way, this affords a conclusive prescription
of right in tlie part}' so enjoying it, and this is equal to a
riglit by prescription."

1 SCO 0 Mass. 90.

410 PRESOIPTIVE EVIDE^XE. [rule 86.

In University of Vermont v. Reynolds,^ it was said: " In
cases of prescription the possession is conclusive as to the
rinlit. There are certain other cases in which the pre-
sumption is not considered as altogether a legal inference,
but must be made by the jury, and yet the court advise or
(direct the jury to make such presumption. The enjoy-
ment of certain incorporeal hereditaments for the period
of twenty years, if adverse, establishes the right to such
enjoyment founded on the presumption of a grant; but
this possession is liable to be explained. The enjoyment
is, therefore, not an absolute title, but may be rebutted.
But if the enjoyment was adverse, it affords sufficient
ground for such presumption. Chancellor Kent says the
later English authorities give to this presumption the most
unshaken stability, and they say it is conclusive evidence
of right. Judge Story, in the case of Tyler v. Wilhinsouy
considers it in this light, and says that this presumption
may go to the extinguishment of a right in various ways,
as well as by grant. In these cases, although the courts
do not decide upon these presumptions as purely questions
of law, yet they direct the jury to make them to answer
some purposes of justice, and to quiet possessions. These
cases differ altogether from those where the jury are to
make their inferences and deductions from the weight of
testimony as to the existence or loss of a deed or grant.
This second class of presumptions, where the jury are
advised to make them, it will be found, apjoly to cor-
poreal as well as incorporeal hereditaments. Thus, a
grant of land may be presumed, as well as a grant of a
fishery, or common, or way. And many cases of this
kind are to be found: Jackson v. McCall^ Jackson v.
Murray,^ Jackson v. Hudson} In the latter case, an out-
standing title, founded on a deed or release, which was in
evidence, was presumed to have been extnguished, as the
title had never been asserted or claimed. From comparing

1 3 Vt. 234 (1831). 5 7 Id. 5.

2 10 Johns. 377 ; 6 Am. Dec. 343. * 3 Id. 375 ; 3 Am. Dec. 500.

RULE 8G.] niESUMPTIOXS FROM TOSSESSIOX. 411

these cases with the case of Doe ex dem. Fcnicidc v. lieed^
it may bo inferred th:it where there has been a long con-
tinued possession which in its origin was or would have
been unlawful unless there had been a grant, or if tlie
origin of such possession can not be accounted for without
considering it either as unlawful, or also lawful by virtue
of a grant, the court will not infer that the possession was
unlawful, but direct the jury to presume such grant, or
anything which will confirm the possession. But if the
original possession was consistent Avith the fact of there
having been no grant, then, although the possession may
have been ever so long, it will be left to the jury to say
whether they believe such grant has been made, and they
must determine according to the weight of the evidence."
And further, in the same case,^ it was said: *' The measure
of the law is ex diuturnitate temporis omnia prciesumuntur
solemnitur esse acta? An act of Parliament, a grant
from the crown, a deed, and in fact anything which
will quiet a possession, may be presumed from length of
time, where such act, grant, or deed would have been law-
fully passed, made or given ; and this presumption is said
to be founded: (1) On the principle that the law will not
presume any man's acts to be illegal, but will attribute
such possession to a legal origin: (2) that the failure to
interrupt such possession by those who had the right arose
from their knowledge that it was lawful in its inception;
and (3) upon principles of public policy for quieting men
in their possessions."

In Fiene v. FernaJd,'^ it was said: <' The principle upon
which the presumption of grants or other contracts for the
security of rights and easements is made, is that when one
person knowingly permits another for a long course of
3'"ears, and without molestation or interruption, to claim
and enjoy rights, easements, or servitudes injurious to him
or his estate, it would be against man's experience, and

1 5 B. & Aid. 232. » Co. Lit. 6.

a 3 Vt. 231 ; 23 Am. Dec. 2-10 (1331). * 2(5 Me, 436 (ISiT).

412 PKESUMPTn'E EVIDEXCE. [llULE 86.

contrary to his motives of conduct, to account for it so
satisfactorily in any other manner, as to presume that he
had authorized it by some grant or agreement. When it
appeared that the enjoyment has existed by the consent
or license of the person who "would be injured by it, no
such presumption can be made."

In Sirim'pjler v. Roberts,'^ Chief Justice Black, in con-
sidering the question of lapse of time as affecting dis-
putes as to land, uses this language: " It is true that the
transaction which creates the contest between these parties
is entirely too old to be investigated now with the slightest
hope of ascertaining the truth. It is impossible for us to
feel any confidence in the evidence which can be furnished
by men of these times concerning occurrences so remote.
Fifty-two years went round between the time when the
purchase-money for this was j)aid and the bringing of the
present suit. During all that time neither Benson, nor his
heirs, nor anybody else deriving title from him, made any
claim to the land, nor paid taxes for it, nor exercised any
act of ownership over it, nor manifested the least sign
of consciousness that they had a title to it. We are now
asked to determine the rights of the parties, on such facts
as can be fished up from the oblivion of more than half a
century. Nearly two generations have lived on the earth
and been buried in its bosom since this business was trans-
acted. Of the men who were then in active life and
capable of being witnesses, not one in twenty thousand is
now living. Written documents whose production might
have settled this dispute instantly have been, in all human
probability, destroyed or lost or thrown away as useless.
The matter belongs to a past age, of which we can have no
knowledge except what we derive from history, through
whose medium we can dimly discern the outline of great
public events, but all that pertains to men's private affairs
is wholly invisible, or only visible in such a sort as to con-

1 18 Pa. St. 299 (1852).

RULE 8G.] niESU-AU^TIONS TUOM TOSSESSION. 413

found tho judgment. ' No man,' says Mr. Justice Ser-
geant,^ ' ought to be i3crmittcd to lie by, while his rights
can be fairly investigated and justly determined, until time
has involved them in uncertainty and obscurity, and then
ask for an inquiry.' For such reasons as these it is that
every civilized society has fixed a limited time within which
all rights must be prosecuted. Where this is not done by
positive enactment of the Legislature, the judiciary calls
in the aid of presumption; and courts of equity, though
not bound by the Statutes of Limitation, close their doors
against stale demands as sternly as the courts of law.
Time will raise presumptions as conclusive for or against
an original title as it will in other cases. AVe have as little
power to read the ashes of burnt papers, or call dead
witnesses from their graves to testify in a dispute about
business transacted l)y the land-jobbers of the last century,
as we would have if the controversy was on any other subject.
It is accordingly settled that the non-return of a survey
for some years, without taking possession or paying tho
surveyor's fees, is an abandonment of the warrant.^ And
even when the negligence is imputable to the officer, a
long delay will defeat the warrantee's title.' The title of
a warrantee is presumed to have been conveyed, where no
claim is made under it for a long time.* A sale of war-
ranted land for taxes, though irregular and void if the
warrant holder had made early opposition, becomes a
perfect title after an acquiescence of twenty-four years.**
Payment of taxes for twenty-one years is presumptive
evidence of a convej'ance from the warrantee.* A survey,
unimpeached for twenty-one years, is conclusively l)elicved
to have been regular;^ and that even w^here there is an
unexecuted order of resurvey by the board of property.^
In short, the courts of this State seem uniformly (and

1 2 Watts, 115. <> 17 Ser. & R. 350.

2 2 Pa. St. 384. « 1 W. & S. 324.

s 4 Walts, 140. • 2 Walts, 300; IW. & S. C8.

* 2 liiun. 468. « 7 Bair. 07.

414 PEESUMPTIVE EVIDEXCE. [llULE 86.

especially of late) to have refused to go back more than
tweuty-one years to settle any difficulty about the issuing
of warrants or patents, or the making or returning of
surveys, or the payment of purchase-money to the com-
monwealth. These questions, like others, are disposed of
according to the legal presumptions which arise from the
lapse of time. The time which raises a presumption which
will act on an interest in land is twenty-one years ; ^ and
this presumption unrepelled will defeat any claim that is
set up against it."

In a leading case Mr. Justice Story said: *' The doctrine
as to presumption of grants has been gone into largely on
the argument, and the general correctness of the reasoning
is not denied. There is no difference in the doctrine
whether the grants relate to corporeal or incorporeal heredi-
taments. A grant of land may as well be presumed as a
grant of a fishery or a common or of a way. Presumptions
of this nature are adopted from the general infirmity of
human nature, the difficulty of preserving muniments of
title, and the public policy of supporting long and uninter-
rupted possessions. They are founded upon the considera-
tion that the facts are such as could not, according to the
ordinary course of human afiairs, occur unless there was a
transmutation of title to, or an admission of an existing
adverse title in, the party in possession." ^ That a fence
between two farms has been kept up for many years nearly
in the same place, but not permanent and stationary does
not raise the presumption that it is the true boundary. It
is merely evidence of an agreement and acquiescence in
the line as the true line.^ The doctrine of adverse posses-
sion is to be taken strictly and not to be made out by infer-
ence, but by clear and positive proof. Every presumption
is in favor of possession in subordination to the title of the

1 4 W. & S. 297.

s Story, J., in Ricard v. Williams, 7 Wheat. 109 (1822).

» Knight V. Coleman, 19 N. H. 118; i'J Am. Dec. Ul USIS).

RULE 8G.] rUESUMPTIONS FROM POSSESSION. 415

true owner. ^ If a person enters into possession of land
and holds it, without more, the presumption is he claims
title. 2

In Pennsylvania it has been held that possession for thirty
years under a survey in the handwriting of a deputy sur-
veyor, does not raise a presumption that the survey was
made by proper authority.^ " Presumptions from length
of time are those which the law makes without regard to
what may have been the actual state of the fact. They are
conclusions of law, not of fact ; and neither the court nor
the jury is supposed to believe what they take to be conclu-
sively established as true. The particular circumstances of
possession and length of time arc to be determined by the
jury, but the inference from them is for the court. This
principle of decision is had recourse to from necessity,
because, from the remoteness of the period of the supposed
transaction, there is no means of ascertaining the actual
state of the fact, and it therefore holds in judging only of
things which belong to antiquity. In England, a grant may
be presumed against the crown ; but less readily than
a<^ainst an individual. In this State, from the very nature

O

of our land titles, the reason of this difference holds with
additional force. In other countries, holding by permission
of the State, is a rare circumstance ; with us, holding by
permission under an implied contract for a conveyance to
be executed at an indefinite period subsequently, is a com-
mon origin of title. This remark is applicable in a greater
or less degree to every part of the State ; but it is obvious
that to raise this kind of presumption, a greater length of
time w^ill be required, where the population is sparse, and the
possession a matter of little notoriety, than where the popu-
lation is dense, and possession of a nature to arre>t the

1 Jackson v. Sharp, 0 Johns. 163 (1S12) ; Rung r. Shonenbcrscr, 2 Watts, 23; 2.3
Am. Dec. 05 (1833).

» Rung f. Shonenbcrger, 2 Watts, 23 (1?33). A? to possession of written instru-
rceuts as eviilencc of title, sec Hill r. Heach, 12 N. J. (Eq.) 31 (185S).

3 WUson V. Stouer.O S. & R. 6i>l (1S22).

416 PEESCMPTIVE EVIDENCE. [rULE 86.

general attention. In Matler v. Tlie Ministers of Trinily
Church , the land which was the subject of the presumed grant
lay in the neighborhood of Philadelphia, the oldest and most
thickly inhabited part of the State ; and the occupancy of it
by the erection of a church on it, in which divine service was
regularly celebrated, and by using a part of it as a cemetery,
was of a nature so notorious as to preclude all possibility
of its having been unknown to the proprietary officers, or
to the government, after the proprietary estates were
assumed by the commonwealth. Under these circum-
stances, it was held that a grant ought to be presumed
after ninety years. At the time, too, when this possession
commenced, there was scarcely anything like method in the
issuing of rights to land ; after the application system was
introduced, the business of the land office was conducted
with regularity, and the locations were duly registered in
the proper office. To this may be added that the location
in question, if in fact one ever existed, was for land in a
part of the State comparatively new and thinly inhabited,
where taking possession without a grant was a common
mode of laying a foundation for a title ; and that the occu-
l^ancy in this particular instance was attended with no par-
ticular circumstances of notoriety. It is impossible to lay
down any rule on the subject of presumption which could
be safely applied to anything like a majority of the cases
that may arise ; these must be judged of from their partic-
ular circumstances. As a standard for general reference,
the ordinary period of human existence might, perhaps, be
found more convenient in practice, and thought more con-
sistent with the reason of the thing than any other that
could be proposed ; for while a matter may be susceptible
of proof by living witnesses, it can not be classed with the
things of antiquity. But this is thrown out merely by way
of suggestion. We establish no general rule as to pre-
sumptions against the commonwealth, much less do we
pretend to determine what would be a reasonable period as

RULE 87.] KESUMmONS FROM POSSESSION. 417

against an individual. Wc are of opinion the period of
thirty years was insufficient to raise a presumption of the
existence of a location, or any other authority on which
Baird's survey might have been made ; and consequently
that the survey ought not to have gone to the jury ; and
that even if it might rightly have been admitted, instruct-
ing the jury that there was nothing in the way of a
presumption in favor of the existence of a location was
error."

An act of the Legislature may be presumed.^ Like a
grant a statute may bo presumed, notwithstanding the pub-
lic records show no trace of such a law. But this presump-
tion will only be made in cases where the Legislature might
have acted, and does not arise where by a constitutional
limitation or well known custom it could not or would not
have passed such a law.

RULE 87. — Where there exists no power to make a
grant, none can be presumed from long possession.

Illustrations.

I. To sustain A.'s title it is necessary to presume a deed from the
trustees of a university which held the lands in question. The trustees
never had power to convey by deed. The presumption can not arise. ^

II. To sustain B.'s title a grant from the State to his ancestors must
be presumed. A prior grant of the same land toC.'s ancestors is shown.
The presumption can not be made unless it is proved that the grant to C.
had been revoked.*

In McCarty v. McCarty^^ the question being as to the

. title to land, a deed executed by a feme covert was relied

on. The deed was valid if the woman was married at the

1 Lady Stafford v. Llewellin, Skin. 78; Att'y-Gen. i-. Ewelime Hospital, 17 Bcav.
390; Lopez v. Andrews, Silan. & R. 329, note; McCarty r. ilcCarly, '2 Strobh. (L.J 6;
47 Am. Dec. 6S.5 (1847).

- University of Vermont v. Reynold, 3 Vt. 234 (1S31).

« /./.

* 2 Strobh (L.) 6; 47 Am. Dec. 685 (1847).

27

418 PEESmiPTIVE EVIDENCE. [llULE 87.

time, and the court was asked after twenty year's pos-
session under it to presume a statute granting a divorce.
In that State, South Carolina, divorces were not granted
by the courts and had always been refused by the Legis-
lature. The court refused to make the presumption.
Said the court: "Best, in his treatise on Presumptions,
tells us there is hardly a species of act or document, pub-
lic or private, that will not be presumed in support of
possession. Even acts of Parliament may be thus pre-
sumed. Under this authority, if a divorce ever had
taken place, or even could take place in this State, I would
not hesitate to say that an act for that purpose ought
to be presumed in this case. But, as was said in Boyce v.
Owens,^ ' the marriage contract in this State is regarded
as indissoluble by any human means. Nothing short of the
actual or presumed death of one of the parties can have the
effect of discharffing its obli";ation and legal effect.' This
was my deliberate judgment, pronounced and concurred in
by my brethren of the Court of Appeals, Johnson and Har-
per, nearly fifteen years ago. It has received the entire
sanction and acquiescence of the bench, the bar, the Legisla-
ture and the people, ever since. The most distressing cases,
justifying divorce even upon Scriptural grounds, have been
again and again presented to the Legislature, and they have
uniformly refused to annul the marriage tie. They have
nobly adhered to the injunction, 'Those whom God has
joined together let not man put asunder.' The working of
this stern policy has been to the good of the people and of
the State, in every respect. With this knowledge before
us, can an act granting a divorce a vinculo matrimonii, be
presumed? Mr. Best, in his second chapter, section 61,
page 74, under the maxim : * Omnia prmsumnntur rite esse
acta,* says : ♦ The extent to which courts of justice will
presume in support of acts, depends very much on whether
they are favored or not by law.' This being, as I think,

1 1 um, 10.

RULE 88.] rRESU^IPTIONS FROM TOSSESSION. 419

the true notion of the application of the maxim, I am clearly
of the opinion that an act granting a divorce can, under no
circumstances, be presumed from lapse of time."

KULE 88. — When a person is in possession of property
and is shown entitled to the beneficial ounership
thereof, the i>resumption is that every instrument has
been executed, and every thiujj has hccn done to
render his title legal.^

Illiistrations.

I. A person has possession of a deed. This raises a presumption of
its legal delivery to him.^

II. A partition of laud is presumed from possession and lapse of
time.'

III. A long possession of land by the grantor acquiesced in by the
grantee is shown. The presumption is that it was for a breach of condi-
tion.*

IV. A. enters into possession of land under a conveyance from B.
A.'s.title is presumed good till the contrary is shown.*

v. A voluntary division of property is made by heirs in 1830. In 1860
an administration will be presumed.''

VI. A. has been in possession of land for twenty years under an
administration deed. The presumption is that all the legal formalities
of the sale were observed. ^

VII. The regularity of a sale under a power is presumed from lapse
of time. 8

VIII. A sale of land is made by an agent. It is presumed to be made
under a power which is lost after a lapse of time.'

1 So recitals In deeds are presumptive evidence of pcdijrree (Little r. Palister, i
Me. 200 (1S26;) and of the deeds referred to after a lapse of lime. Fuller r. Saxiou,
20 X. J. (L.) Gl (1813) ; Den v. Gaston, 2.i X. J. (L.) G15 (1S5C).

8 Roberts r. Swearingen, 8 Neb. 303 (1879); Fairleo r. Fairleo,21 N.J. (L.) 2S1
(1848) ; Berry v. Anderson, 22 Ind. IIG (l.'^W).

3 Goodman f . ■\Vimor, C-t Ala. UO (IST'.t) ; Baker v. Prcwitt, Gl Ala. 551 (1S79).

* OT.ricn v. Henry, G Ala. 787 (1S14).

» Pitney v. Leonard, 1 Paige Ch. 401 (1S20).

0 Desverges v. Desvcrgcs, 31 Ga. 753 (ISGl) ; Austin r. Bailey, 37 Tt. 219 (1*^04).

' Winkley r. Kaimc, 32 X. H. 2GG (IS.-.,')) ; CoiC r. Deringer, 78 Pa. St. 271 (.1875).

8 Simson v. Eckstein, 22 C.al. 580 (18C3).

» Fornian r. Crutcher, 2 A. K.Marsb. 70 (1S19) ; Delabigarre v. Second Minicipality,
3 La. Ann. 230 (1S4S).

420 PEESUMTTIYE EVIDENCE. [rULE 89.

RULE S9. — And the possession of personal property
raises a presumption of title in, and ownership of, the
property hy the possessor.^

Illustrations.

I. The plaintiff and defendant claimed property in a certain slave.
The trial judge instructed the jury that if they found certain facts the
plaintiff should have a verdict, "even should they believe from the evi-
dence that defendant and his father under whom he claimed held pos-
session of the slave, * * * for twenty years, claiming him openly as
their own property." Held, erroneous.^

II. A. is in possession of a vessel. The presumption is that he owns
it.3

III. B. has certain sheep in his possession. The presumption is that
they are his.*

IV. In C.'s hands are a number of bonds. The presumption is that he
owns them.'

V. A. has possession of a note. This presumes ownership in A. of
that note.*

VI. A. claiming that a calf in the possession of B. is his, breaks into
B.'s yard and takes it. The presumption is that it is B.'s property and
the burden is on A. to show his right.'

VII. A. ships property by a carrier. The presumption is that A. owns
the property.^

In case I., the Alabama cases on this topic were reviewed
at length. " In this as in most States of this Union," said

1 Entrikenw. Brown, 30 Pa. St. 364 (1859) ; Phelps v. Cutler, 4 Gray, 137 (1S55) ; Park
r. Harrison, 8 Humph. 413 (1847); Burdge v. S Jiith, 14 Gal. 380 (1859); Goodwin v.
Garr, 8 C:il. 615 (1857) ; Hunt v. Utter, 15 Iiid. 318 (18G0) ; Evans v. Board of Trustees,
15 Ind. 319 (1800); Robinoe v. Doe, 6 Blackf. 85 (1341); Millay v. Butts, 35 Me. 139
(1853) ;Linscott V. Trask, 35 Me. 150 (1852). "No principle is more fully settled by
the uniform weight of authority than that possession is prima/acie evidence of title,
and that upon proof of that fact the party proving it is entitled to vindicate any
violation of his rights thus established. Possession, indeed, may be considered tho
primitive proof of title and the natural foundation of right." Id.

2 McArthurr. Carrie, 32 Ala. 75 (1850).

8 Stacy V. Graham, 3 Ducr, 444 (1854) ; Bradley r. TheNew World, 2 Cal. 373 (1852). •
* Fish I'. Skut, 21 Barb. 333 (1856).

6 Wickes V. Adirondack Co., 4 Thomp & O.250 (1874).

« Donncll v. Thompson, 13 Ala. 440 (1848) ; Bush v. Seaton, 4 Ind. 522 (1853) ; Kim-
ball V. Whitney, 15 Ind. 280 (18C0) ; Squicr v. Stockton, 5 La. Ann. 120 (1850).

7 Cumberlcdge v. Cole, 44 Iowa, 181 (1876).

8 Price V. PoweU, 3 N. Y. 322 (1850;.

RULE 89.] rilESUMPTIO^^S FKOM TOSSESSIOX. 421

the court, ** there is a growing disposition to fix ca period,
beyond which human transactions shall not be open to
judicial investigation, even in cases for which no statutory
limitation has been provided. This period is sometimes
longer, and sometimes shorter, dependent on the nature of
the property, and the character of the transaction. By
common consent, twenty years have been agreed upon, as a
time at the end of which many of the most solemn transac-
tions will be presumed to be settled and closed.^ The
nature of this presumption, and the manner of drawing
it, arc not, in the mother country, and in the several States,
the same.- The precise question we are considering does
not appear to have been before considered in this court.
Kindred questions have been under review. In liJiodes v.
Turner and Wife,^ an effort was made to bring an admin-
istrator to a settlement after a great lapse of time. Chil-
ton, J., employed the following very pointed language:
* If a final judgment has been rendered, according to the
principles of the common law, it Avould be presumed to
have been paid after the expiration of twenty years ; and if
the parties allow this period to elapse without taking any
steps to compel a settlement, we think the presumption of
payment arises, and the executor or administrator should
be exempted from the necessity of hunting up evidence to
prove accounts and vouchers which ordinarily enter into
such settlement.' In Barnelt v. Torrance,'^ a settlement
had been attempted; but it was so defective that under our
decisions, it could not be regarded as a final settlement.
More than twenty years afterwards the administrator was
cited to a final settlement, and he was sought to be charged
with assets for which he had never accounted. This couil;,
deciding that it would presume, after so great a lapse of

1 See 2 story's Equity, sec. 10286.

2 See, on this subject, Gowen & Hill's notes to Phil. Ev. (Edition by Van Cott),
Part I., pp. 536,451'), 457,464, 485 to 600,504-505; yol. 5, same edition, 267; Sims v.
Aughtery, 4 Strob. Etj. 103.

s 21 Ala. 210.
« 23 Ala. 463.

42^ PEESTBIPTIYE EVIDENCE. [kULE 89.

time, in favor of the correctness of that settlement, that the
necessary notices were given, and that the parties in interest
■were present, proceeded to remark, that * a decree, ren-
dered under such circumstances, is binding on the parties to
it until it is reversed in the proper court. * * * The
executors can not now be called upon in the Probate Court
to go into a settlement again, when all parties have reposed
on that already made, for so long a period that it is fair to
presume that much of the proof which was then obtainable
could not now be commanded.' In further considering
this presumption, the court added: ' We have carefully ex-
amined the jjround on which the rule here sugi^ested is
founded, and are thoroughly convinced its adoption is
essential to the safety and repose of executors, administra-
tors, and guardians, and to the advancement of the ends of
common justice. It is strictly analogous to the rule at
common law in relation to Judgments, and more liberal
than the rule in equity with respect to stale claims.' The
case of GanWs Admr. v. Phillips,^ was a suit by an
administrator de bonis non, to recover a slave, the title to
which, it was alleged, had never passed out of the estate.
The defendant, and those under whom he claimed, had been
in the adverse possession of the property for more than
twenty years. The record of the Orphan's Court did not
show that the person named as executrix of the will had
ever qualified. If she had not qualified then there could
have been no assent to the legacy — the slave was still
a part of the estate of the testator, and the plaintiff
was entitled to recover. The Circuit Court charged
the jury, that record of her appointment as executrix
would be the highest and best evidence of the fact;
but if the proof showed to their satisfaction that the
appointment and qualification of said Elizabeth Gantt as
executrix had been duly made, and that in the lapse of
time the papers and records of the apj)ointment had been

1 23 Ala. 275.

RULE 89.] PEESUMI^TIOXS FROM TOSSESSIOX. 423

lost or destroyed, then the jury might presume her appoint-
ment and qualification. The latter i)art of this charge was
assigned as error. This court, after collating and com-
menting on many decisions of other courts, said : ' Under
the circumstances, we consider the court left the question
to the jury quite as favorably as the plaintiff was author-
ized to demand.' Thejudgment was affirmed. Ju Harvey v.
Thrope,^ a similar decision was made.^ It will be observed,
that in the case cited from our own reports of Barnett v.
Toi^ance, the presumption drawn by the court in favor of
the recrularity and validity of the decree was conclusive,
not a mere jifima facie intendment, liable to be overturned
by proof. To the same effect is the principle announced in
Rhodes v. Turner and Wife} These were proceedings
against administrators, for wasting, misapplying, and not
accounting for assets of the estates they represented. Under
the authority of those cases, if an administrator has con-
verted to his own use, or privately sold, the property of the
estate, and has not been proceeded against for the conver-
sion until the expiration of twenty years after the time
when ho should have settled the estate he is forever dis-
charged, on a mere presumption of law. Suppose, after
that time an administrator cZe bonis non should be appointed,
and should sue the purchaser for property which the ad-
ministrator in chief had sold to him privately, or without
an order. The law would presume, in favor of the faith-
less administrator in chief, that he had accounted and set-
tled for the property, although the record might show
nothing on the subject. If the purchaser, under these
circumstances, should be held accountable for this identical
property, would not the law present a strange anomaly?
Applying these principles to the case at bar, Mrs. Cavin,
in 1853, when this suit was brought, could not, under our
decisions, be made to account for the conversion or devas-
tavit of these slaves. Can Mr. Arthur be made to account

1 28 Ala. 250. ' Lay r. Lawson, 23 Ala. 377. ^ Supra.

424 PRESUMPTIYE EVIDENCE. [i;ULE 89.

for them? In the cases of Ganit v. PliilUps and Harvey
V. ThropCy the question, whether the presumption was con-
clusive or not, was not presented by the record, and Avas
not discussed. We do not regard them as authorities
ao'ainst the principle announced in lihodes v. Turner and
Wife and Barnett v. Torrance.^ There is an able discus-
sion of this question in the case of Sims v. Aughtery}
That case, in its legal bearings, was strikingly like the pres-
ent. The circuit decree was pronounced by Chancellor
Dunkin, who, quoting from a former decision, used the
lan<Tuage that, ' the lapse of twenty years is sufficient to
raise the presumption of almost anything that is necessary
to quiet the title of property. If there had been no will
and no administration, administration would nevertheless
be presumed, and that defendants had acquired a title from
the administrator. * * * After a possession of twenty-
five years, the court will presume a sale by the executor for
the puri)osc of paying the debts, an administrator de bonis
non after Lyle's death, and a sale by such administrator,
or almost anything else, in order to quiet the long posses-
sion.' In the Court of Appeals the opinion was delivered
by Chancellor Dargan. The profession is referred to it as
an elaborate vindication of this doctrine. After copying
the language of Chancellor Dunkin, last above quoted, he
adds : ' This is strong language, but not stronger than is
warranted by the authorities, or demanded by a stern and
imperative public policy. In regard to property not the
product of manual labor, there is, perhaps, no title extant
in any part of the world, that could withstand the search-
ing scrutiny of justice, and which if traced to its origin,
would not be found based upon fraud, rapine, spoliation,
or conquest.' After adverting to the statutes of limita-
tion as one means of giving repose to stale subjects of liti-
gation, he proceeds to remark : 'We have another system
of rules, founded upon what is called the doctrine of legal

X Supra. * 4 Strob. Eq. 103.

RULE 80.] PKESUMITIONS FliOM TOSSESSION. 425

presumptions, which prevail alike in courts of law and
equity, and which arc eminently subservient to the quieting
of titles, and the prevention of litigation arising iq)on
obscure and antiquated transactions. If these legal pre-
sumptions require a longer period than statutory bars to
acquire force and effect, they are more general in their
operation. They are highly conducive to the peace of
society and the happiness of families; and relieve courts
from the necessity of adjudicating rights so obscured by
time and the accidents of life, that the attainment of truth
and justice is next to impossible. * * « These legal
presumptions, by which conflicting claims and titles are set
at rest, I have endeavored to show are natural and neces-
sary. They spring spontaneously out of the institutions
and relations of property. As to the precise time at which
they arise, each independent community must judge for
itself. "We have adopted the law of the mother country.
In South Carolina, as in England, by the lapse of twenty
3'ears without admissions, specialties and judgments are pre-
sumed to be satisfied, and trusts discharged. Twenty years'
continued possession will raise the presumption of a grant
from the State, of deeds, and wills, administrations, sales,
partitions, decrees, and (the chancellor has said) of almost
anything that may be necessary to the quieting a title, which
no one has disturbed during all that period.' ^ In ex-
amining the numerous authorities on this question, to be
found in the reported cases of trials at law, the profession
will frequently encounter the declaration, that from this
lapse of time, the jury are authorized to draw the pre-
sumption which we have been considering. By this we
understand, that the question is at all times one for the
jurv ; a presumption they may draw, but there are no rules
which irovcrnthcm in such cases. Such was the instruction
of the Circuit Court in the case of Gantt v. PhiUips^ and

1 See, also, tUo case of Williamson v. Williamson, 1 Johns. Ch. 4SS, 492-493.

426 rREsmiPTiYE evidence. [rule 89.

in the case of Harvey v. Thrope} Now, with all due
deference, we confess ourselves unable to perceive any
solid reason on which to rest such a principle. We
think it is at war wdth the analogies of the law, and
with the theory of jury trials. Juries are authorized to
l)ronounce on the credibility of witnesses; to determine
disputed facts ; to draw conclusions from doubtful and con-
tradictory premises ; and to admeasure damages when the
law has afforded no standard. We do not say these are the
only functions of a jury, but they are the controlling ones.
Whenever the facts of the case are clear and uncontro verted,
the rights of parties are, or should be, fixed and uniform.
When there remains no fact to be found or conclusion to be
drawn from contested and indeterminate premises, there is
no use for a jury, for the law determines the rights of the
l^arties. This principle is absolutely necessary, as the basis
of a uniform system of jurisprudence. So, in cases where
a jury trial is necessary, every proposition which stands
forth clear and undisputed, and which rests on no inference
to be drawn from disputable or controverted premises, is,
or ought to be, a question of law. On this principle rests
all our presumptions of law. It is not our purpose to deny.
to the jury the right and duty of determining whether in
fact the twenty years have elapsed. That fact being found,
however, and there being no contravailing proof, what rea-
son can exist for leaving it to the discretion, possibly
caprice, of the body, whether they will draw the desired
conclusion? There is one naked fact, to wit, acquiescence
for twenty years. There can be no reason for indulging
the presumption in one case which does not exist in all
others. Chancellors invariably draw the presumption
from this one fact, and we think a rule equally uni-
form should prevail in courts of law. To lay down a
different rule, will be to invite a contest and jury trial in
every case thus circumstanced. The circumstances of each

1 Supra.

RULE 80,] rRESUMFTIOXS FROM ROSSESSION. 427

case will be appealed to by opposing counsel, in the hope
that they severally may impress the jury with the belief
that it is their duty in the particular case to indulge or
withhold the presumption, as the one or other result will
promote their several interests. "We are unwilling to de-
clare a rule, the result of which may be to tempt juries
from their propriety, to multiply litigation, and to increase
the uncertainty which must always attend the administra-
tion of the law. We do not wish to be understood as say-
ing that this presumption is always conclusive. In the
first instance, perhaps, it never is so. In cases like the
present, however, we hold that a 2)ri7na facie presumption
is raised, whenever there is satisfactory proof of twenty
years' uninterrupted, adverse enjoyment and possession.
Speaking of this presumption, ]\Ir, Starkie says (edition
of 182G, vol. 3, p. 1214), ' it gives to the evidence a techni-
cal efficacy beyond its simple force and operation.' On
page 1224, he says, this is not a direct and immediate in-
ference to be made by the courts [of law] ; yet ' the court
will under certain circumstances, direct a jury to presume
an outstanding term to have been surrendered by the trus-
tee.' To the same effect is Va^idicJc v. Van Buren.^
This prima facie case may, of course be overturned. It
can not be done by proving that the title was, in its incep-
tion, defective. Proof to be effectual for this purpose,
must be addressed to the character of the plaintiff 's pos-
session, either in its acquisition or use; must tend to show
possession is not inconsistent with the plaintiff 's right ; or
that some other excuse independent of original defect of

1 1 Caines Rep. 34. Sec on this subject Cow. & Hill's Xotes to Phil. Ev. (ed. by
Van Cott), Part 1, i)p. 485, et Beq.; 2 Wend. Black. 206, note 10; Beck on Presump-
tions, lU; Smithpcter r. Ison, 4 Rich. Law, 203; 3 Bouv. Bacon, 621; Jackson v.
MoCall, 10 Johns. 377; 1 Greenlf. Ev., sec. 46; Warren r. Webb, 2 Strange, 1129; Rex
r. Carpenter, 2 Show. 47; Trotter v. Harris, 2 Younge &Jcrvis, 235; Beall r. Lynn, 9
Harr. r. Johns. 336, 353, 361; Ld Pclham r. Pickingill, 1 T. R. 3S1; Doe v. Ireland, 11
East, 280, 284; Goodtillo r. Baldwin, Id. 28S ; Penwarden v. Ching, 1 Moody &
Mai. 400; Rex r. Long Buckley, 7 East, 4o; Mayor of Kingston r. Ilerwer, Cowp.
102, 110; Stodder r. Powell, 1 Stew. 1S7 ; 1 Oreenl. Cruise, 415, 416; Rustard f. Gates,
4 Dana, 430; McPherson v. Cuuliff, 11 S. & R. 422, 4S2.

428 PRESUMPTIVE EVIDEXCE. [rULE 89.

title, must be given for the seeming long acquiescence.
"We cannot now be more definite. The record before us
contains no excuse for the delay; and in such case, the
2)rhna facie presumption becomes conclusive. It results
from this, that the charge of the circuit court was errone-
ous."

In case II. it was said: "The rule of law that possession
of property is prima facie evidence of ownership is uniform
in its application. The question of the ownership of a
vessel forms no exception. In this case the vessel was in
the possession and under the control of the master."

In case VI. it was said : *' Proof of possession is presump-
tive proof of ownership, The plaintifl' made a j^rima facie
case by proof of possession. The presumption was not
overcome by proof that the defendant afterwards acquired
possession, because it appeared that he broke the plaintiff's
enclosure, and took the calf from the plaintiff 's possession.
He could acquire no legal advantage thereby. Nor was
the presumption in favor of the plaintiff overcome by the
evidence as to the ownership prior to the taking of posses-
sion by the plaintiff, because the court finds that the evi-
dence on the point is balanced."

In Moore v. IJawJcs,^ it was said: *« "With respect to per-
sonal chattels, possession alone is presumptive evidence of
property, and with nothing to oppose it, is sufficient; and
when the possession is accompanied with the exercise of
complete acts of ownership for a length of time, it is strong
evidence for the consideration of the jury, and requires sat-
isfactory explanation. It is laid down in a late work, that
if one should be in possession of a horse, which once belonged
to his neighbor, for a considerable time, using him as
his own, without any claim from his neighbor, it would be
presumed there had been a sale, unless such neighbor could
prove the contrary. And where a son is in possession of

1 2Aik. (Vt.) 390 (1827).

RULE 89.] PKESUaiPTIONS FROM POSSESSION. 420

property delivered him by his father to use gratuitously,
although the relation between the parties may sufficiently
explain the possession, and remove any presumption of
fraud or ownership arising from that alone, yet it is said
that if the father permits the son to sell and replace such
property, or to exchange and manage it as though it was
his own, this will be evidence that the loan was a mere
cover for a gift with intent to deceive and defraud others." ^

1 1 Swift's Dig. 273. 766.

PART V.

PEESUMPTIONS IN CRIMINAL CASES.

(431)

CIIAPTEE XIX.

THE PRESmiPTIONS IN FAVOR OF INNOCENCE.

RULiE 90. — The law presumes the innocence of a per-
son charged with crime until the contrary is proved
beyond a reasonable doubt. ^

Illustrations.

I. A man and woman live and cohabit toEfether. The presumption ia
that they are married. 2

1 People V. Thayer, 1 Park. C. C. 595 flS2'5) ; State v. Fugate, 27 Mo. 635
(1858) ; State v. Mosier, 25 Conn. 40 (1856) ; Wasdeu v. State, 18 Ga. 264 (1855). So a
forfeiture will not be presumed. State v. Atkinson, 24 Vt. 448 (1852).

" THREE TAMOUS THIXOS IN LAW."
" The presumption 0/ innocence. It is greatly to be regretted that the so-called
presuniptiou of innocence in favor of the prisoner at tlie bar is a ))retense, a delu-
sion, an empty sound. It ought not so to be, but it is. Rufus Choate said that
'this presumption is not a mere phrase without meaning;' that 'it is in
the nature of evidence for the defendant ; ' that ' it is as irresistible as the heavens
till overcome ; ' that ' it hovers over the prisoner as a guardian angel throughout the
trial;' that 'it goes with every part and parcel of the evidence;' that 'it is equal
to one witness.' That is just what it should be, but just what is not. Pi-acti-
cally it is of no avail whatever in the trial. The jury tread it under foot ; the judge
the same moment he admits it in theory, forgets it in argument. It is a dead letter.
Kay, so far from being merely inoperative, it is not hazardous to say that in the trial
the presumpticm is reversed. By court and jury, by prosecution, police, and by the
public the accused is presumed guilty. Let every one, as he looks upon a prisoner
in the dock, carefully inquire of himself and answer if this be not so. The reasoa
is plain. The wliole course of criminal procedure, from inception to close, is de-
signed to shut out presumptions of innocence and invite prcsum))tions of guilt.
The secrecy of complaint-making at the mngistrate's office, the mysterious inquisi-
tion of the grand jury room, the jiublicity of the arrest, the commitment to the
lock-up, the demand of bail, the delay of trial, the enforced silence of defense till
prosecution has done its worst, are all so manystejis and strokes to blacken the
accused before ho is permitted to open his moulh with a syllable of evidence to
break the force of the damaging array of circumstances. To suppose that the pre-
8U!iiption of innocence, which unbiased nature prompts, is not before this time
choked and strangled to death is an absurdity too gross to dispute. The treatment
Itself of the prisoner negatives the presumption. If lie is presumed innocent, whv
is he manacled? why is ho put in jail? why is he let out only on bail? why, when ho
is put on trial, is he put in the dock? why docs he not have place with the by-stand-
ere, who are simply presumed innocent? The 'presumption,' in the preaence of

« Post V. Post, 70 111. 48t (1873) ; Cope v. Pearce, 7 Gill (Md.), 263 (1948).

28 ( 433 )

434 PKESU3IPTIVE EVIDENCE. [UULE 90.

II. In IS-iO, marriages between whites and negro slaves are prohibited
under penalty of line and imprisonment. It is proved that a negro
slave and a white woman lived and cohabited together. The presump-
tion is that the relation was that of concubinage, and not of marriage.^

exich things, is a contradiction of terms. IIow ca-n a person be presumed innocent
wlio is presumably guilty? The fact that lie is restrained of his liberty presumes
ruilt. There is no other construction to be placed ou the restraint. II uuiau nature
is not capable of any other. Yet human nature ought to presume innocence till the
contrary is proved. What then? Shall the mode or order of proceeding against
Buspected violators of law be so modilied as to allow human nature to be thus gen-
erous? Can it be so modified? Tlie object to be attained is worthy a good deal of
experiment at the risk of a good deal of havoc of old time forms and i)rocecding3.

" The reasonable doubt. It would be a happy thing for the triers of criminal causes
if somebody should succeed in defining a ' reasonable doubt.' A great felicity it
would be if only some one should portray a reasonable doubt beyowd a reasonable
doubt. Nothing is more glibly spoken of than this doubt, yet there is nothing more
doubtful. Lawyers roll it as a morsel under their tongues and roll it off at juries
and justices as if it were a thing to be apprehended with as much certainty as a
stark naked fact. But what a reasonable doubt is it is duubtful whether they stop to
think, or, stopping, form any but a very doubtful opinion. Should it be a matter
ot opinion at iiU? Should it not boa matter of conviction? Sliould not everyone
who is to inquire whether he has it, have as absolute an idea of what a reasonable
doubt is as he has of any other independent fact in the case? If the case is to turn
on the matter of reasonable doubt, how can it turn aright, unless the turning-point

be ascertained and fixed beyond a reas beyond all question? The learning

of the books on this subject is vast. It begins with the Bible — that is to say, the
book WTitcrs make it begin there, though it does not appear that the inspired writ-
ers were sufficiently inspired to hit upon the favorite expression. Its equivalent
law-givers since the time of Moses, find in the Mosaic provision, which forbade the
death penalty till the crime 'be told thee, and thou hast heard of it, and inquired
diligently, and, behold, it to be true, and the thing certain' (Ueut. xvii: i). This is
said to be the amplification of Moses as definerof the doubt. Modern authorities
do not seem to have done much better. But it is not because they have not tried.
One author says that ' the i)crsuasion of guilt ought to amount to such a moral cer-
tainty as convinces the minds of reasonable men beyond all reasonable doubt,' But
what is the reasonable doubt? Another says that 'a reasonable doubt may be de-
scribed by saying that all reasonable hesitation in the mind of the triers, respecting
the truth of the hypothesis attempted to be sustained, must be removed by the proof.'
Another describes it ' as that degree of certainty upon which the jurors would act in
their own grave and important concerns.' This seems to apiiroach nearer a solu-
tion, and resembles a definition once heard in a charge to a jury. The judge mIio
gave it is admittedly one of the ablest and clearest-headed jurists who ever tat upon
the bench. He is t'.ie man whom Rufus Choate called ' one of the ablest minds of
the State.' As near as memory serves, hiswords were as follows: 'Just what a
reasonable doubt is, gentlemen, it is not quite easy to say; but you arc practical
men, and I instruct you that you should be satisfied of the defendant's guilt, to that
degree of certainty which you would require for your guidance in acting decisively
in any grave matter of your own within such time as is ordinarily given to a juiy
for deliberation in the case." Allowing this to be right instruction, is it not prob-
able that many, very many, are convicted without proof beyond a reasonable doubt.

" The burden of proof . This is another expression that should have a more fixed
meaning. Like all other expressions used familiarly in discourse, it loses force and
weight by its commonness. It ))lay8 a windy, wordy part in all argumentation on
questions of fact. To the mind of the average hearer it assumes the likeness of a

1 Armstrong v. Hodges, 2 B. Mon. (Ky.) 70 (1841).

KULE 90.] rUESUMPTIONS IX FAVOR OF INNOCENXE. 435

III. M. was Indicted for stealing: a kep; of beer; all that was proved
was that M. had taken a keg of beer from a store. This is iusuflkieutto
raise a presumption that M. Intended to steal it.'

IV. A husband and wife separate, and the former lives and cohabits
with another woman. The presumption is that he obtained a divorce
from his first wife, and she may legally marry again. ^

V. A. marries B., having a husband, C, living. It being proved that
C. Bubsiquently died, the presumption is that A. and B. were married
again after liis death, if they are proved to have continued cohabitation.^

VI. A., being under the legal age, contracts a marriage with B.; the
marriage is void. When A. came of age, B. was on her death bed and
died three weeks thereafter. During that time they continued to live
to:ethorand to be recognized as husband and wife. /ieW, that a mar-
riage would be presumed to have taken place after A. came of age.*

VII. To sustain a plea of coverture, a defendant swore that she was
married at a certain chapel on a certain day, and afterwards cohabited
with hor husband; the law required that to render a marriage valid the
chapel in which it was solemnized should be licensed. Held, that the
presumption was that the chapel in this ease was duly licensed.*

harmless sort of puff ball, tossed hither and thither by cunnin? lawyers to mystify
the c;ise ami the hearer, and, for about ihe same reason, llie trier comes to tieat It
as nut of mucli account. How often does the juror give it serious thought tliat tlio
plain tiff is weighted with a burden wliich the defendant is not — that having asserted
a thing he should sliow it to be fact by a preponderance of the evidence? JIany
reason that assertion must be true, otherwise it would not have been asserted.
Some regard ipse f/iji< demonstration. They look upon denial as despair. To them,
he who denies seems to be in a llx. They never get the better of the first impres-
sion of the first word. But the old Koman rule — the proof devolves on him who
declares not on him who denies — is the American rule, and there is no rule that
ought to be more rigidly enforced in court or out of court. A righteous rendering
of it would be, let him who can not make good wliat he would assert, hold his
peace or ^lold forth at his per.l. Then there would be less holding forth. There
is too much holding forth. Too miicli there is of heedless, wanton allegation and
accusation of a legal sort and of all sorts. Rights arc rated too low. Kcputatiou
is reckimed too cheap. It is |iainfiil to relate that the law holds reputation in
very cheap estimation. Criminal procedure eveiy where is a standing invitation
to att:ick it at tlio public expense, and civil procedure affords no adequate remedy
wlicn it IS attacked and damaged. A suit for libel or slander, however well grounded
in law, generally leaves the aggrieved man worse off than when ho invoked the
law's aid. Before he can get a trial the slander has done its worst, and before he
can get a verdict he his spent thrice the money the law gives him to right Ihe
wrong he has suffered." From Ten Years a Police Court Judge. New York:
Funk & Wingalls, 1884.

1 Mason v. State, .32 Ark. 239 (1877).

a Dlanchard v. Lambert, Ai Iowa, 228 (1876).

» Blanchard r. Lambert, 43 Iowa, 228 (137G) ; Y'at is t». Ilouston, 3 Tex. 433 (1848) ;
Carroll v. Carroll, 23 Tex. 731 (ls:)S); Fenton r. Ileed. 4 Johns. (X. Y.) 51; Uose v.
Clark, 8 Paige (X. Y.) 57.'>; Jackson r. Claw, 18 Johns. (N. Y.) 347.

< Wilkinson v. rayne, 4 T. U. 403 (1701).

6 Sichel r. Lambert, 15 C. B. (.v. S.) 781 (1864).

43G PEESU3IPTIVE EYIDEXCE. [rULE 90.

VIII. In an action by A. against B., A. alleged that B., who had char-
tered his ship, had put on board a dangerous commodity by which a loss
happened, vnthout due notice to the captain or any other person employed
iu the navigation. The burden of proving that B. did not give the notice
was on A.^

IX. A railroad company is authorized to construct a railroad in a
public street, with necessary switches and turn-outs; it makes certain
switches which, it is alleged, are a nuisance. The presumption is that
they are necessary, and the burden is on the one complaining of the
nuisance. 2

X. A physician is employed to treat A.'s wife and children. In a suit
for his services it will be presumed that the visits for which he charges
were necessary.*

XI. A statute required that the taking of the sacrament should be a
prerequisite to holding a certain office. The presumption is that a per-
son holding such office has qualified in this manner.*

XII. An insolvent exhibits an account of his debits and credits under
oath. The presumption is that it is a true account, and not that he has
committed perjury .^

XIII. The action is for the malicious prosecution of the plaintiff with-
out probable cause. The burden of proving the absence of probable
cause is on the plaintiff.'

XIV. A statute provides that no justice of the peace shall hear any
examination in any bar-room whore spirituous liquors are sold; a
justice holds an examination in a bar-room. It will not be presumed
that spirituous liquors were sold there.'

In case I., if the inference should be that they were not
married, there must be an inference that they were living in
unlawful relations. *' The mere cohabitation of two persons
of dilTerent sexes, or their behavior in other respects as
husband and wife, always affords an inference, of greater
or less strength, that a marriage has been solemnized
between them. Their conduct being susceptible of two
opposite explanations, we are bound to assume it to be
moral rather than immoral."

1 Williams v. East India Co., 3 East, 104 (1802).
« Carson v. Central R. Co., 35Cal. 325 (1868).
3 Todd V. Myers, 40 Cal. 3.55 (18T0).
< Kmg V. Hawkins, 10 East, 211 (1809).

6 Hewlett V. Hewlett, 4 Edw. (X. Y.) 7 (1839).
0 Lavender r. Hudgens, 33 Ark. 7fi4 (1878).

7 Savier v. Chipman, 1 Mich. 116 (1818).

1

RULE 90.] niESUiirXIONS IN FAVOR OF INNOCENCE. 437

In case II., the presumption is that the parties were not
married, because, if they were, tiiey were guilty of violating
the express words of a penal statute.

In casein.,*' the law presumes in favor of innocence and
of a good motive rather than a bad one, and the burden was
not upon the defendant to show that he had no criminal
intent in taking the beer, but it devolved upon the State to
prove that he had."

" We have here," said Keating, J., in case VII., •* the
fact of a religious ceremony having been performed by a
minister of religion in a place of public worship. All that
is required to make the marriage a strictly valid marriage
is that the place where the ceremony was performed was duly
licensed under the statute for the celebration of marriages,
and that the registrar was present. The question is
whether we may presume the existence of these two
requisites. I think we may, consistently with all the doc-
trines of legal presumptions, fairly presume that the cere-
mony W(is properly and legally performed, seeing that if it
were otherwise the officiating clergyman would have been
guilty of felony." ^

It was argued in case VIII., that to compel A. to prove
the want of notice was compelling him to prove a negative,
which, in a civil action at least, was against the general
rules of evidence. But Lord Ellenborough said : " That the
declaration, in imputing to the defendants the having wrong-
fully put on board a ship, without notice to those concerned
in the management of the ship, an article of a highly dan-
gerous, combustible nature, imputes to the defendants a
criminal negligence, can not well be questioned. In order

1 In Reg V. Malnwaring, 1 Dears. &B. 1P.2, a similar question arose upon nn in-
dictment f ir bifraniy. " The presence of llie registrar at ihe marriage," said Wighi-
man, J., " the fact of the ceremony taking place, and the entry in the registrar's
book, of which acoi)y viis piodured at tlic trial, seemed to me at the time to bo
circumstances wtiich alfordcd, ancl 1 now taink, aided as they arc by the presump-
tion omnia rite esse acta, they do afford prima facie evidence that the chapel was a
duly registered place in which marriages might bo legally celebrated. If it were
not such a jilace, all those who took part iu the proceedings would be crimmally
liable for doing so."

438 PRESUMPTIVE EVIDENCE. [rULE 90.

to make the putting on board wrongful, the defendants must
be cognizant of the dangerous quality of the article put on
board, and if, being so, they yet gave no notice, consider-
ino- the probable danger thereby occasioned to the lives of
those on board, it amounts to a species of delinquency in
the persons concerned in so putting such dangerous article
on board for which they are criminally liable and punishable
as for a misdemeanor at least. We are therefore of
opinion, upon principle and the authorities, that the burthen
of proving that the dangerous article in question was put on
board without notice rested upon the phiintiff alleging it to
have been wrongfully put on board without notice of its
nature and quality."

Where the facts of a case are consistent both with honesty
and dishonesty, a judicial tribunal will adopt the construc-
tion in favor of innocence.^ To make out the guilt of a
person charged with crime, the prosecution is required to
prove every material allegation and every ingredient of the
crime. The accused is presumed innocent until this is done.^
Even in a civil action, where a question arises the determin-
ation of which involves the establishment of the fact that
either party has been guilty of a criminal act, the other
party, in order to obtain a determination of such question
in his favor, must overcome, by a fair balance of testimony,
not only the evidence introduced by the party so charged,
but also the legal presumption of innocence which exists in
every case.^

Other instances and applications of the presumption of
innocence may be noted. Thus, it is a legal presumption
that a criminal act done by a wife in the presence of her
husband is done under his coercion ; * a person under the age
of seven years is conclusively presumed incapable of crime;
while a person between the ages of seven and fourteen is

1 Greenwood v. Lowe, 7 La. Ann. 197 (1852).
* Home V. State, 1 Kan. 42 (1862).
3 Bradish v. lUias, 35 Vt. 326 (1802).
Oomiaouweallh v, Butler, 1 Allen, (Mass.) 4 (1861) ante, p. 279.

RULE 90.] rRESUMmONS IX FAVOR OF INNOCENCE. 439

presumed incai)abIo of crime; but this latter presumption
may 1)0 shown, in a particular case, to be incorrect.^ From
the fact that two oaths have boon made by the same person
on tlio same sul)ject, both of which can not bo true, no pre-
sumption arises that either of them was willfully or corruptly
made.^ There is no presumption of law that eveiy one
present at a riot, and not actually aiding in its suppression,
is guilty unless he proves his non-interference; ^ and it has
been held that the fact that three or more persons, in a
violent manner, beat another, does not raise a presumption
of law that they assembled with that intent, or, after being
assembled, agreed mutually to assist one another in execu-
ting such purpose.* And it has been held that where a
statute givosone accused of crime the privilege of testifying
or not on his preliminary examination, the fact that he gives
no evidence on his examination can not be shown on the
trial as a presumption against his innocence.* Where, by
statute, a woman is capable of contracting marriage at the
age of fourteen, there is no presumption that a married
woman is over fifteen.^ The presumption is that an agent
has done his duty, until the contrary is shown; misconduct
or negligence will not, in the absence of proof, be presumed.^

Sub-Rnlo 1. — Fraud is never presumed , unless such circum-
stances are shown as willlegalli/ justify such an inference.

Illustrations.

I. It was contended that a sale was fraudulent; the court Instructed
the jnrj' that " it was necessary that the defendant should adduce
stronger proof to establish fraud than to prove a debt or a sale ; that the
presumption was that every man acted houestlj' and without fraud, and
when fraud was alleged the proof must not ouly be sullicieut to establish

1 State V. Goin, 9 Humph. (Tenn.) 175 (1818) ante, p. 270.

2 Schulter v. Merch.ints' Mutual Ins. Co., 62 Mo. 239 (1876).
» State V. McBride, 19 Mo. 239 (1853).

« State I'. Kempf, 2C Mo. 429 (1S5S).
6 Tenipleton r. rcoplc,27 Mirh. 501 (1873).
• 6 Bruce v. Atkinson 22 Ark. ;;G3 (1S60).
Gailher v. Myrick, 9Md. 118 (1856).

440 PRESU3IPTIVE EVIDENCE. [llULE 90.

an innocent act, but to overcome the presumption of liouesty." Held,
proper.^

II. In an action for deceitfully exchanging property it was alleged that
A., one of the parties, had notice of the adverse claim at the time of the
exchange. The burden was not on A. to show that he had no notice.^

III. To remove the bar of the statute of limitations from a claim
agaiust a testator's estate, the plaintiff proves a receipt of part payment,
signed by him, which was found in the testator's room. The mere fact
that the plaintiff was seen in that room alone would not justify the in-
ference that he fraudulently placed his receipt among the testator's
papers.

IV. A mortgage being alleged fraudulent, the burden of showing this
to be so is on the complainant.*

V. A law allowed an administrator commissions on the money In his
bands, except where he failed to make annual rejjorts to the ordinary ; in
proceedings in which it was charged that an administrator was not
entitled to money which he claimed as commissions, the burden of show-
ing that he did not make the required returns is on the complainant.
The presumption is that he did his duty.*

In United States v. McLean,^ which was <a proceeding to
forfeit a vessel for acts done in violation of an act of Con-
gress, Mr. Justice McLean thus expressed himself regarding
the extent and policy of the presumption of innocence :
" The object of the prosecution is to enforce a forfeiture of
the vessel and all that pertains to it, for a violation of the
revenue law. This prosecution, then, is a highly penal one,
and the pcnulty should not be inflicted unless the infractions
of the law shall be established beyond reasonable doubt.
That frauds are frequently practiced under the revenue
laws can not be doubted, and that individuals who practice
these frauds are exceedingly ingenious in resorting to
various subterfuges to avoid detection is equally notorious;
but such acts can not alter the established rules of evidence
Yv^hich have been adopted, as well with reference to the pro-

1 Hatch V. Bayley, 13 Gush. 27 (18E3).

2 Patue V. Pelton, 48 Vt. 182 (1376) ; and see Hibbard v. Mills, 4G Vt. 243 (1873).
« Carroll v. Quynn, 13 Md. 370 (1858).

* Trice V. Gover, 40 Md. 102 (1874).

6 Geev. Hicks, llich. (S. C.) Eq. Gas. 5 (1831).

« 9 Pet. (U. S.) 683 (1835).

EULE 90.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 441

tection of the innocent as the punishment of the guilty. A
view of the evidence in this case must create a suspicion of
fraud in the mind of every one who reads it with atten-
tion. • * * But are not the facts consistent with an
innocent motive ? And if a fair construction of the acts and
declarations of an individual do not convict him of an
offense — if the facts may be all admitted as proved and the
accused bo innocent, should he be held guilty of an act
which subjects him to the forfeiture of his property on mere
presumption? He may be guilty, but he may be innocent.
If the scale of evidence docs not preponderate against him,
if it hang upon a balance, the penalty can not be enforced.
No individual should be punished for a violation of law
which inflicts a forfeiture of i)r()[)erty unless the offense
shall be established beyond reasonable doubt. This is the
rule which governs a jury in all criminal prosecutions, and
the rule is no less proper for the government of the court
when exercising a maritime jurisdiction." " It is certainly
true," said Mr. Justice Story, delivering the judgment of
the Supreme Court in another case,^ ♦' that length of time
is no bar to a trust clearly established, and in a case where
fraud is imputed and proved, length of time ought not upon
principles of eternal justice to be admitted to repel relief.
On the contrary, it would seem that the length of timo
during which the fraud has been successfully concealed and
practiced is rather an aggravation of the oirense,and calls
more loudly upon a court of equity to grant ample and de-
cisive relief. But length of time necessarily obscures all
human evidence, and as it thus removes from the parties all
the immediate means to verify the nature of the original
transactions, it operates, by way of presumption, in favor
of innocence and against imputation of fraud. It would bo
unreasonable, after a great length of time, to require exact
proof of all the minute circumstances of any transaction, or
to expect a satisfactory explanation of every difficulty, real

1 Prevostf. Gratz, 6 Wheat. (U. S.) 481 (IS-il) ; 1 Pet. C. C. 3G4 (1816).

442 PREsoiPTmc EVIDENCE. [rule 90.

or apparent, with which it maj^ be encumbered. The most
that can fairly be expected in such cases, if the parties are
living, from the frailty of memory and human infirmity, is
that the material facts can be given with certainty to a com-
mon intent, and if the parties are dead and the cases rest
in confidence and in parol agreements, the most that we can
hope is to arrive at probable conjectures and to substitute
general presumptions of law for exact knowledge. Fraud
or breach of trust ought not lightly to be imputed to the
living, for the legal presumption is the other way, and as to
the dead, W'ho are not here to answer for themselves, it
"would be the height of injustice and cruelty to disturb their
ashes and violate the sanctity of the grave, unless the evi-
dence of fraud be clear beyond a reasonable doubt."

Sub-Rule 3. — And good character is presumed.^

In Harrington v. State^ it was said: "The court in effect
instructed the jury that the law required less weight to be
given to such evidence than if the accused were on trial for
a crime of a lower grade. The weight that ought to be
given to proof of good character docs not depend upon the
grade of the crime, but rather upon the cogency and force
of the evidence tending to prove the charge, and the motives
shown to exist for the commission of the crime by the ac-
cused. The presumption of innocence which is raised by
such proof varies in force with the circumstances, but not,
we apprehend, with the grade of the offense irrespective of
the circumstances. The charge is substantially taken from
that given to the jury by Chief Justice Shaw in the case of
Commonwealth v. Webster} That case was peculiar in its
circumstances ; and we may here remark, that it is unsafe, as
a general rule, and often calculated to mislead, to adoi)t a
charge prepared for a particular case, and give it, as a rule

1 People f. Johnson, 61 Cal. 142 (18S2).

« l!MJllir. St. 26-1 (]8C9).

8 5 Gush. 324.

RULE 90.] PKESIIMPTIONS l\ FAVOR OF INNOCENCE. 443

of law, to guide juries in wcigliing evidence in otlier evidence
dissimilar in that circumstance. The distinction taken in
Webster's Case, as to the weight that may bo given to proof
of 'n)od character, between cases where the charge is for a
crime of a higher, and where it is of a lower grade, we have
not found recognized in any other case; while its correctness
has been denied by the Court of Appeals of New York.i
The indictment in Cancemi's Case was for murder, and tho
instruction of the court below to the jury was the same as that
given in Webster's Case. The instruction was held to be erro-
neous, and to constitute ground for reversing the judgment.
The reasonable elfect of proof of good character is to raise a
presumption that the accused was not likely to have committed
the crime with which he is chai-ged. The force of tiiis i)re-
sumption depends upon the strength of the opposing evi-
dence to produce conviction of the truth of the charge.
If the evidence establishing the charge is of such a nature
as not, upon principles of reason and good sense, to be over-
come by the fact of good character, the 1 ittcr will, of course,
be unavailing and immaterial. But the same will be true
of any other fact or circumstances in evidence, which after
receiving its due weight, does not alter the conclusion to be
drawn from the other evidence in the case. Good character
is certainly no excuse for crime ; but it is a circumstance
bearing indirectly on the question of the guilt of the ac-
cused, which the jury are to consider in ascertaining the
truth of the charge. Hence it has been held, and we think
correctly, that it is error for the court, in a criminal case,
to charge tho jury, that " in a i)lain case, a good character
would not help the prisoner but in a doubtful case, he had a
riizht to have it cast in the scales, and weighed in his behalf."-
Thc true rule was said to bo, ' that the testimony is to go to
tho jury, and be considered by them in connection with all
the other facts and circumstances ; and if they believe the

1 Cancemi r. People, 16 X. Y.501.
3 State V. nenry, 5 Jones (N. C.)i 66.

444 rRESUMPTlYE EVIDENCE. [RULE 90.

accused to be guilty, they must so find notwithstanding bis
good character.' "

The presumption of innocence of one crime may convict
a person of another and a greater one. Gibson v. ISiate'^
is an interesting case of this kind. G. was indicted for
bigamy, and it was shown in evidence that he had married
one Maria in 1855, and Ann in 1857, Maria being tlien
living. It was also shown that Maria had been married in
1849 to one E., who, a few months afterwards, disappeared,
and at the date of the marriage between G. and Maria he had
been missing a little over five years. It was held that E.
would be presumed to be dead at the time of the marriage
between G. and Maria, otherwise G. would have been
guilty of adultery, though the effect of this presumption
was to render G. guilty of bigamy by making the first mar-
riage valid. *'The point of inquiry," said the court, " is
whether his marriage to Maria was legal. The presumption
of law is that it is. The effect of the statute is to make it
legal as to her unless her husband were then alive, and the
presumption is that he was dead. It must also be pre-
sumed to be valid as to him under the circumstances, for it
can not be presumed to be valid as to one party and held
to be void as to the other, for that would be to render him
guilty of adultery for cohabitation with a woman whose
marriage with him was, as to her, presumed to be legal and
valid until the contrary was shown, which would be absurd.
The law presumes the marriage to be valid as to him, and,
in opposition to that presumption, without evidence destroy-
ing it, he can not be heard to allege that it was illegal, in
order to avoid the punishment of his crime in abandoning
the duties which he thereby assumed, and contracting mar-
riage with another woman. Nor is he permitted to com-
plain that the presumption of the legality of his former
marriage is to be used for the purpose of convicting him of
the crime of his subsequent marriage. The presumption is

1 38 Miss. 313 (ISCO).

RULE 91.] PRESUMPTIONS IX FAVOR OF INNOCENCE. 445

one of innocence, Avhich he can not complain of because lie
subsequently committed a crime, in relation to whicli the
presumption in the former case operates against him."

RULE 91. — A prima facie case does not take away from
a defendant a presumption of innocence.^

The jury are not to convict unless the evidence is such as
to lead them to believe that the prisoner is guilty. They
may i)e instructed that it is the duty of the prisoner to
explain facts and circumstances proved against him con-
sistently with his innocence. But if he fails to do so the
jury are not bound to convict him unless, on the whole evi-
dence, they believe him guilty. Therefore it is imi)roper
to instruct them that any facts and circumstances which
may be proved against him place the burden on him of
proving his innocence.

Illustrations.

I. Ill a criminal prosecution the jury were instructed that when the
goveruraeut made out a prima facie case, it was then incumbent on the
defendant to restore himself to that presumption of innocence in which
he was at the commencement of the trial. Held, error. 2

IT. On an indictment for forgery in uttering a money order, the jury
were instructed that " if it was proved that the order came into the hands
of the defendant unaltered and came out of his hands altered, the bur-
den of proof was on the defendant to prove that he did not alter it."
Held, error.*

III. On a trial for murder it appeared that the house in which it was
committed had been subsequently set on fire to conceal the crime. The
jury were instructed that if the prisoner might have been at the scene of
the Are the ohms was cast upon her to get rid of the suspicion thus cast
upon her. Held, error.*

In easel, it was said: " "We are apprehensive that the
distinction between a prima facie case, which is suificient
to call upon the defendant to go into his defense and

1 Commonwe.ilth f. Dana, 2 Mctc. (Mas.i.) 329 (1S41).

« Coinmonwealth v. Kimljall, 24 Pick. (Mass.) 373 (18.37).

« State V. Five, 20 Me. 312 (1SI6) ; State v. Tibbets, 35 Me. 81 (1852).

« People V. bodiue, IDen. (N. Y.) 281 (1845).

446 PRESUMPTIA^E EVIDENCE. [kUEE 91.

encounter such ^)?v*m<7 jTac/e ease, and the changing the bur-
den of proof, M^as not sufficiently considered and observed
in this case. Making out a. prima facie case does not neces-
sarily or usually change the burden of proof. A prima
fade case is that amount of evidence which would be suffi-
cient to counterbalance the general presumption of inno-
cence and warrant a conviction, if not encountered and
controlled by evidence tending to contradict it and render it
improbable or to prove other facts inconsistent with it.
But the establishment of a prima facie case does not tnke
away from a defendant the presumption of innocence,
though it may, in the opinion of a jury, be such as to rebut
and control it; but that presumption remains, in aid of any
other proofs offered by the defendant, to rebut the prose-
cutor's 7:)r?>«a/ac2e case. The court are of opinion that the
jury should have been instructed that the burden of proof
was upon the commonwealth to prove the guilt of the
defendant — that he was presumed to be innocent unless the
whole evidence in the case satisfied them that he was
guilty."

In case II. it was said: <' The prosecuting party is
bound to make out his case, in civil proceedings, to the
satisfaction of the jury, and, in criminal procGcdings, beyond
a reasonable doubt. The burthen of proof docs not shift
from the party upon whom it was originally thrown upon
the production of evidence by him sufficient to make out a
prima facie case. But when the other party relies upon
facts to establish another and distinct proposition, without
attempting to impugn the truth of the evidence against him,
it is otherwise. If the result of the case depends upon the
establishment of the proposition of the one on whom the
burthen was first cast, the burthen remains with him
throughout, though the weight of evidence may have shifted
from one side to the other according as each may have
adduced fresh proof."

In a criminal trial, if the prosecution fails to make out a
prima facie case, the fact that the defendant produces no

EULK 92.] rRESUMPTIONS IN FAVOIl OF IXNOCEXCE. 447

evidence to negative an averment which the prosecution i-s
bound to prove will not warrant the jury in finding that
indictment proved.^ " In a criminal case the establishment
of Vi prima facie case does not, as in a civil case, take away
from the defendant the presumption of innocence or change
the burthen of proof. A solid reason for the distinction is
the well known difference in the measure of 'proof in the
two classes of cases. In a civil case the j^laintiff is not
required to prove bej^ond all reasonable doubt the facts on
which he relies for a recovery, and therefore when he estab-
lishes a prima facie case the burthen of proof is thereby
shifted, and the ^n';?m/«c/e case so established entitles him
to recover unless it is destroyed by proof from the other
party. But in a crimii.al case the State is required to
prove beyond all reasonable doubt the facts which consti-
tute the offense. The establishment, therefore, of a prima
facie case, merely, does not take away the presumption of
innocence from the defendant, but leaves that presumption
to operate in connection with or in aid of any proofs
offered by him to rebut or impair the prima fa cie case thus
made out by the State. A circumstance, aided by that
presumption, may so far rebut or impair i\\e prima facie
case as to render a conviction upon it improper.''

>' 2

RULE 92. — Wliere there are conflicting presumptions,
tlio presumption of innocence will prevail against the
presumption of the continuance of life (A), the pre-
sumption of tlio continuance of things generally C B ) ,
the presumption of marriage (C),the presumption
of chastity (D). But it is otherwise as to the pre-
sumption of knowledge of the law (E) and the pre-
sumption of sanity (F).

«' Nothiujx can be clearer than this," says Mr. Justice

1 Coniiniinwealih v. Ilarfliinan, 9 Gray (Mass.) Ml (1?57).

2 Osk'trcc f. State, 23 Ala. 003 (ISJC) ; Uniteil States r. Douglass, 2 Blatclif. (U. S.)
207 (1S51).

448 PRESUMPTIVE EVIDENCE. [rULE 92.

Heath in an old case,^ " a presumption may be rebutted by
a contrary and stronger prei^uuiption."

Illustrations.

A.

I. Mary B. married W., who afterwards enlisted and went on a
foreign service and was never lieard of afterwards; twelve months after
his departure she married B. Held, that the issue of B. would be pre-
sumed legitimate. -

II. Title was claimed through A. and B., his wife; it was proved that
B. had been married to C, who was dead, and that she had had three
husbands before she married A. The presumption was that these hus-
bands were dead before she married A.'

In case I. the conflicting presumptions were the presump-
tion of innocence and the presumption of the continuance
of life. " If," said the court, " W. was alive at the time
of the second marriage, it was illegal and she was guilty of
bigamy. If she had been indicted for bigamy, it would
clearly not be sufficient. In that case, W. must have been
proved to have been alive at the time of the second mar-
riaire. 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." *

1 Jayne v. Price, 5 Taunt. 326 (1814).

= Kinj,' V. Iiiiialjiiants of Gloucestershire, 2 Barn. & Aid. 386 (1819) ; Lockhart v.
White, 18 Tex. 102 (18.'3fi); Sharp v. Johuson, 22 Ark. 79 (1860); Greeiisborongh v.
Uuderhill,12Vt. 604 (1839); Cameron v. State, 14 yVla. .546; 48 Am. Dec. Ill (1848);
Chapman v. Cooper, .5Uich. (L.) 452 (I8-)2) ; Yatedr. Houston, 3 Tex, 442 (1848).

3 Brciflen v. Palf, 12 S. & K. (Pa.) 430 (1825).

< The case which id often cited in connection with King v. Inhabitants of Glou-
cestershire, is King V. Inhabitants of IIarborne,2 Ad. & E. 540 (1835). There it
appeared that one Ann Smith had, on April llih, 1831, been married to one Henry
Smith, who deserted her. Smith had been previously married in October, 1821, to
another female with whom lie lived until 1825, when he left lier. But several letters
had been received from her from Van Dieman's Land, one of which bore date only
twenty-live days previous to the second marriage. The court held tliat the pre-
sumption was that tlie fl st wife was living at the time of the second marriage. The
decision in this case was evidently based on the very short time wliich transpired
between tlie time when the first wife was sliown to be alive and llic date of the sec-
ond marriage. And see Lapsley v. Grierson, 1 ILL. Gas. 500 (1848). In Yates v.
Houston, 3 Tex. 433 (1848), where four years had elapsed since the former wife had

RULE 92.] PRESUMPTIONS IX FAVOR OF IXNOCEXCE. 449

111 case II. it vras said: " In an old transaction like this,
the fact of a second marriage is of itself some evidence of
the death of the former husband. There are sometimes
cases where it is unavoidably necessary to decide on the
existence of facts without a particle of evidence on either
side, and if a deci.^ion in a particular way would implicate
a party to a transaction in the commission of a crime or
any offense against good morals, it ought to be avoided, for
the law will not gratuitously impute crime to any one, the
presumption being in favor of innocence till guilt appear."
In a Massachusetts case it was said: "The presumption
of the wife's innocence in marrying again might well
overcome any presumption that a man not heard from
for four 3^cars before the second marriage, or for sixteen
years afterwards was alive and was her lawful husband when
she married the second time." ^

I. A. and B., as husband and wife, sue C. for slander; they prove
their marriage, but C. proves declarations of the wife that she had been
married in Germany to another man. It will be presumed that the pre-
vious marriage has been dissolved by death or divorce .^

II. A. threatens to kill B.; sometime after B. kills A. There is no
presumption that A.'s Intention continued to that time.^

III. A. was indicted for illegally selling liquor; it was proved that
it was sold, in his absence, by his clerk. The fact that the clerk had pre-
viously made similar sales, which A. had approved, does not raise the
presumption that the last sale was with his consent.*

been heard from, it was held th.it her de.ith would bo presumed to v.ilidate a pub?e-
quent marriage. And see Lockhart v. While, IS Tex. 10-2 (ISjC). In Wilkie
V. Collins, 43 Miss. 433 (18;:5,) a husband left his home in Mississippi on October 30th,
1S50, and went to Louisiana on business, where he was last heard from by letter to
his wife, November 30lh, 1S5;1, announcing that he was then sick in bed, and would
return as soon as he was able to travel. lie was of habitual delicate hcaltli, and liis
domestic relations had always been most agreeable. It was the belief of his family
that he was dead, and on December 23d, ISCl, hia wife m.aiTied again. It was hebl
that the husband would be presumed to have been dead at that time. And see
Chapman t-. Cooper, 5 Rich. (S. C.) L. 452 (1S52).

1 Kelly V. Drew, 12 Allen, 107 (ISOO).

« Klein v. Landman, 29 Mo. 250 (18G0).

» State r. Brown, 64 Mo. 3C7 (1S77).

* Patterson v. State, 21 Ala. 571 (1S52).

29

450 PRESUMPTIVE EVIDENCE. [rULE 92.

In case I. it was said : " There was no presumption that a
marriage which was proved to have existed at one time in
Germany continued to exist here after positive proof of a
second marriage de facto here. The presumption of hiw is
that the conduct of parties is in conformity to hiw until the
contrary is shown. That a fact continuous in its nature will
be presumed to contitme after its existence is once shown
is a presumption which ought not to be allowed to overthrow
another presumption, of equal if not greater force, in favor
of innocence. * * * There was not any evidence that
the first husband of Mrs. K. was still living, but if this had
been established we think she was still entitled to the bene-
fit of the favorable presumption that the first marriage had
been dissolved by a divorce."

In case III. it was said : "We have no right to conclude
that because he has sanctioned previous violations of the
law he will continue to do so ; on the contrary, as every
party is to'be presumed innocent until his guilt is made mani-
fest, we should presume that he repented his former
transgression and therefore did not assent to the subsequent
violation."

Where the acts grow out of the illicit relations of the
sexes, this rule does not appear to hold good, as the follow-
ing illustrations will show : —

I. A. and B. are indicted for living togetlier in adultery; the jury are
instructed that where criminal intercourse is once proved it will be pre-
sumed, if the parties live under the same roof, to still continue. Held,
correct. 1

II. B. and C. live together, the latter as B.'s mistress; B. dies; that
a marriage took place between them before his death will not be pre-
sumed.2

It has been said that while much will be presumed in favor
of a marriage, after tlie removal of a barrier between par-
ties who have been prevented from contracting it by a legal

1 Carotti v. State, 42 Miss. 334 (1868).
» Floyd V. Calvert, 53 Miss. 46 (1876).

i

RULE 92.] rRESUMPTIONS IX FAVOR OF IXXOCEXCE. 451

obstacle, no such presumption will arise whore the par-
ties were originally at liberty to form a legal or illegal
union as they preferred. In such a case, having originally
elected the criminal in preference to the lawful relation-
ship, they must bo presumed to have continued therein
until some change of intention and wishes is afErmatively
shown. ^ This distinction renders such cases as those in the
above illustration completely in harmony with cases like Wil-
kinson V. Payne and others, noted underprevious rules. la
WilkinwnY. Payjip,^ an infant contracted a void marriage
and lived with his wife until her death, which occurred only
three weeks after ho attained a legal age to marrj', and it
appeared that during the whole of that time she was on her
death-bed. It was nevertheless held that a marriage would
be presumed. The bar being removed, the presumption
was in favor of innocence.

C.

I. A presumption of marriage ari«:es from cohabitation; M. and T. were
proved to have lived together and cohabited; Y. afterwards married
S. The presumption tliat Y. did not commit bigamy prevails over the
presumption that M. and Y. were married.'

II. In 1840, mari'iages between whites and negro slaves are prohibited
under penalty of fine and imprisonment; it is proved that a negro .^lave
and a white woman lived and cohabited together; the presumption is that
the relation was that of concubinage and not of marriage.*

D.

I. W. was indicted for the seduction of E. under a statute pun-
ishing the seduction of " any unmarried fem.ile of previous chast** char-
acter." The previous chaste character of E. will not be presumed.

1 Floyd V. Calvert, 53 Miss. 46 (1876).

» 4 T. U. 468.

8 Clayton v. Wanlell, 4 N. T. 2:^0 (18.50) ; Case v. Case, 17 Cal. 598 (1S61).

* Armstrong r. llolgcs, 2 IJ. Mon. (Ky.) 70 (1841).

« Westr. Slate, 1 Wis. 203 (IS-V!). But see State r. Wells, 48 Iowa, 671 (1878). In
Slocum f. reoi>lc, 00 111. 281 (lS7'''),the prosccutiDn was under a stulule punishing
the eiiticin;^ a^vuy from h,>nie for tiio purpose ot iirostilulion, of any unmarried
woman of clia- tc life nnd conversalim. In deciding the case the Sni>renie Court
said : " The jiiesumption of law is that her previous life and conversation were
Chaste, and the onus was upon the defendant to show otherwise." Hut the case

452 PRESOIPTIVE EVIDENCE. [rULE 92.

*' It is true," it was said in case I., " that Q,rc]inai-i]y the
reasonable and just presumption i3 in favor of female
chastity. So is likewise the presumption in favor of moral
honesty. Happily, these presumptions are not only justified
in all civilized nations, but nobly illustrated an well by the
institutions of social life as by the laws enacted by govern-
ment. Social intercourse is based upon the presumption of
virtue, and society is obliged so far to conform to this law
of its existence that even in its most corrupt state it is com-
pelled to put on, at least, the form and semblance of virtue
though its spirit may have departed. In every case in
which the integrity of an individual is attacked the pre-
sumption of the law comes to his aid. Every person charged
with crime is presumed innocent till he be proved guilty.
Fraud is never to be presumed, but must always be proved.
Every female charged with an offense, the essence of which
is unchastity, is presumed to be chaste until the contrary
appears. But these excellent and humane presumptions, so
pregnant with the testimony which they bear to the dignity
and honor of human nature, are always to be used, in the
administration of justice, as a weapon of defense, not of
assault. They arc the shield of the accused, not the sword
of the prosecutor. * * * "j^i^q pi-evious chaste char-
acter of the female is one of the most essential elements of
the offense, made so by the express words of the statute in
conformity with the suggestions of sound reason. A pros-
titute may be the subject of rape but not of seduction. It
is the chastity of the female Avhich the statute is designed to
protect. The pre-existence of that chastity is the sine qua
71071 to the commission of the crime. That is the subject of
legal guardianship provided by this section. It is a sub-
stantive matter necessary to be averred and proved. If the

ehows that she was only eighteen years old, that previous to her seduction she had
resided with her parents, went to school and church and mingled in good society,
and t-he testified on tlie trial that she never had intercourse with any man but the
defendant. The expression of llic court was therefore unnecessai-y, as there was
jjioof enough to support the prosecution.

RULE 92.] TRESUMFnONS IN FAVOIl OF INNOCENCE. 453

prosecutrix were to change places, and -were she iiidicttMl
for lascivious conduct, then, indeed, the legal presumption
would come to Ler aid and her chastity would be presumed.
But when the State accuses one of its citizens with tho
violation of the chastity of another of its citizens by seduc-
tion, the law presumes the accused to bo innocent of the
entire offense until the contrary appears. Tho State can
not be pcrniitted to presume the immediate pre-existence of
that chastity with the destruction of which tho defendant is
charged. One act of illicit intercourse affords no presump-
tion that another has not preceded it. * * * The error
consists in tho instruction which the court gave the jury to
the effect that the law presumed that she was previously of
a chaste character, independent of any proof whatever. This
is setting up a presumption on the part of the State, the
prosecuting party, incompatible with the presumption which
the law adbrds the defendant, and if the jjrinciple should
prevail the presumption of the virtue of one citizen might
work the condemnation of another in whose favor the law
affords equal, and when charged with crime, even stronger
presumption."

E.

I. All persons are presumed to know the common and statute law,
and are responsible for its violation. ^ Ignorance of the law excuses
no one and can not be pleaded as an excuse for the commission of a
crime.

II. A statute prohibits the selling of liquor to an intoxicated person
and prescribes a penalty therefor. B. sells liquor to an intoxicated
person not being aware of the law. B. is nevertheless liable, as he is
presumed to know it.^

III. A public officer is indicted for extortion in taking a fee before it
was due. The fee being due to him after a time in any event, he thought,
that the law allowed him to take it in advance. This is no excuse and he
is convicted.'

1 Mayor of Baltimore, r. Xorman, i Md. 352 (1S53).

« AVhitton v. Slate. 37 Miss. 379 (1S51)).

s Com. f. r.afrlcy, 7 Peek. 270 (182S). But see Cutlerr. State, 36 X. J. (L.) 12.5 (1S73\
Where in a similar case, the couviciiou was set aside ou the ground tLat the intent
was wanting.

4o4 PRESUMPTIVE EVIDENCE. [RULE 92.

IV. A. is indicted for suffering gaming in his house. ,, It appears that
A. does not know it is unlawful to permit gamiug in his house. His igno-
rance of the law does not excuse A.^

V. At an election, a number of votes are polled for one B., who is
acting at the time as returning officer. By the law a returning officer is
not eligible as a candidate, and all the voters know that B. is acting in this
capacity. There is no presumption that they know that he is disqualified .2

TI. A. having found some property secretes it with intent to defraud
the owner contrary to a statute. A. is indicted under the statute for lar-
ceny. A. is a negro. The fact that it is the common belief among the
negroes in the neighborhood that property belongs to the Under is irrel-
evant.*

In case II. it was said. " As he is bound to know the law,
he is held to the consequences of a willful violation of it,
whether he knew of its existence or not. Otherwise it
would be difficult to punish any man for a violation of law>
because it might be impossible to prove that he had knowl-
edge of the law. Hence the legal presumption that every
man knows the law, and that his violations of it are Avill-
ful."

In case III. it was said : " This is the case of an honest
and meritorious public officer who, by misapprehension of
his rights, has demanded a lawful fee for a service not yet
performed, but which almost necessarily must be performed
at some future time. If we had authority to interfere and
relieve from the penalty, we certainly should be inclined to
do so, but we are only to administer the law."

In Brent v. State,'^ it was ruled that the presumption of
knowledge of law did not extend to presuming that a person
knew how the courts would construe a statute, and whether
it was constitutional or unconstitutional. The defendants
here were indicted for conducting a lottery, and showed
an act of the Legislature permitting them to do so. The
court held the act unconstitutional, but said ; " We see no

1 Winehart v. State, 6 Ind. 30 (1854).

» Queen v. Mayor of Tewkesbury, L. R. 3 Q. B. 023(1868).

8 State V. Welch, 73Mo. 284 (1880).

443 Ala. 297 (186'J.)

RULE 92.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 455

good reason why the State as well as an individual is not to be
held bound by this salutary and just maxim that no * man shall
take advantage of his own wrong. ' ^ Wo think it clear
that the appellant did not intend to violate any penal or
other law of the State. In other words, that he acted in good
faith, and verily believed he was doing what the State, by
this statute, clearly authorized him to do. But it is insisted,
on the part of the State, that everybody is presumed to
know the law. This properly understood is true, })ut it is
a rule of presumption, adopted from necessity, and to avoid
an evil that would otherwise constantly perplex the courts
in the administration of the criminal law ; that is, the plea
of ignorance. Hence the maxim, that ' ignorance of the
law excuses no one. ' The courts and the profession, how-
ever, well know that this necessary rule of presumption, is
often, and perhaps oftener than otherwise, presuming
against the truth. But we think the State presses this nec-
essary rule beyond its proper measure, and insists that the
appellant was not only bound to know the existence of the
law, but in this case was presumed to know this special act
of the Legislature was, and would be held to be, uncon-
stitutional, and was, therefore, void and no law. "We
can not consent to carry this rule of presumption to
this extent; it must be confined to presuming that all per-
sons know the law exists, but not that they are presumed to
know how the courts will construe it, and whether, if it be
a statute, it will, or will not, be held to be constitutional.
To extend this rule beyond this limit, will be to implicate
the Legislature who passed, and the Governor who approved
the act, in a charge of gross immorality and dishonesty.
If the appellant is to be presumed to know the act w^as
unconstitutional, the same presumption will fix upon
them the same extent of knowledge; that is, that they
knew the act, when it was passed and approved, was in

I Broom's Legal Maxims, top page 206

45(3 PKESU^rPTivE evidence. [r.uLE 92.

conflict ■with the constitution ; and if this be so, it will be a
hard matter to clear either from this grave implication.
But we are satisfied the rule must have the limit we give
it. To hold otherwise, will take from the rule all its
virtue, and make it odious to all right and just thinking
men."

In case TI. it was said : "The defendant offered evi-
dence to prove that it was a general belief among colored
people in that county that money or property found having
no marks upon it to indicate its ownership, belonged to the
finder. The court properly excluded the evidence. It is
a principle as old as the common law that ignorance of the
law is no excuse for its violation ; and the law is the same
for a colored as for a white person. We have not now a
criminal code for the whites and a diflereut one for the
blacks. Under our present constitution no law making
such a distinction would be of any validity. Wharton's
Crim. Law,^ is cited as sustaining the proposition that
taking possession of money and determining to keep it
under an honest belief of a right to do so because found,
is a good defense. There is no section 88 at page 1794,
and the sections on that page do not relate to the subject
under consideration, but section 87, page 87, asserts the
general proposition that ' ignorance or a mistake of fact
is admissible for the purpose of negativing a particular
intention,' and that ' when a particular intent is necessary
to constitute the offense {e.g., in larceny, animus furandi,
in murder, malice), then ignorance or mistake is evidence to
cancel the presumption of intent and to work an accjuital
either total or partial.' But in section 88, he says:
* When a statute makes an act indictable irrespective of
guilty knowledge, then ignorance of fact is no defense.'
On this proposition some learned authors differ in opinion
from Mr. Wharton.^ However this may be, the section of our

1 sect. 88, p. 170*.

2 Bishop, 4 South. Law Ecv. (x. 8.) 58.

RULE 92.] rKESmiTTIONS IN FAVOK OF INNOCENCE. 457

criminal codo in question nicakcs it a felony in a finder of
goods or money belonging to another to convert them to his
own use with intent to defraud the owner, or to make way
with, or secrete them with that intent ; and proof of igno-
rance of the law, or that the finder believed that ho acquired
the title by finding the property, does not tend to disprove the
intent to convert it to its own use. If he did the act with
the double intent named in the section, it is no defense that
in his ignorance of the general law he supposed that by
finding he became the owner of the property. It would be
no defense that he was ignorant of the section under which
be was indicted, which of iLselt' apprises him that lost prop-
erty does not belong to the finder, and why his ignorance of
the o-cneral law to the same effect should avail him as a
defense, is beyond our comprehension. By imposing a severe
punishment upon the finder who converts to his own use
the property of another, direct information is imparted
that such does not become his by such finding. This is the
import of the language of the section, and it is in harmony
with a legal principle well established long before that sec-
tion was enacted. It will not be contended that ignorance
of the statutory provision will excuse its violation, and
if ever io-norance of the law could constitute a defense it
certainly will not do so when the identical section uiider
which the accused is prosecuted informs him of the very
principle of law of which he avers his ignorance."

I. A. is clmrjjed with a crime. The presumption is that A. 'svas sane
■when he comniittcd it, and if he wishes to be excused ou the grouud of
nou-respousibility, he must prove insanity. ^

In case I., if A. was insane when he committed the act,
he could not be punished, for an insane person can not
commit a crime. If the presumption of innocence were

1 Cunningham v. State, 56 Miss. 2G0 (1879).

458 PKESIBIPTIVE EVIDENCE. [rULE 92.

general and •s\'ithout exception, the presumption would be
that A. was insane — in other words th.1t the act was not a
crime ; that he was innocent because he was non-responsible.
But the presumption of sanity and the presumption of inno-
cence coming in conflict, the latter mustgive way according
to the best considered doctrine on this question. The sub-
ject is an important one, and has led to much discussion.
The decisions are not harmonious, and no question is more
debated at the present time, when it arises for actual de-
cision, than the question of the burden of proof of insanity
in criminal cases. Three different views have been advanced.
The first is, that inasmuch as every man is presumed to be
sane, the burden of proof rests on the party setting sanity
up as a defense to establish this insanity beyond a reason-
able doubt. This, it will be observed, entirely extinguishes
the presumption of innocence in the conflict between that
and the other presumption — the presumption of sanity.
The second view likewise considers the presumption of
innocence overthrown by the presumption of sanity, but
holds that the presumption of sanity will prevail only until
it is shown to be otherwise in the particular case by a pre-
ponderance of the evidence. In the third view, the
presumption of innocence prevails to a certain extent, for,
in the jurisdictions where this view is favored, it is held
that insanity being pleaded, the burden of proof rests on
the State to prove the sanity of the prisoner. It is not,
however, held in the States which have adopted this view
that insanity is presumed, but the rule is that if the
prisoner gives any evidence to cast a doubt on his sanity,
the State is obliged to prove his sanity beyond a reasonable
doubt.

The first view seems at present to prevail only in the
courts of Delaware^ and New Jersey,^ though atone time it

1 state ». Danby, 1 Houst. (Bel.) Cr. Gas, 175; State v. Pratt, Id. 269; State v,
Boice, Id. 355; State v. Draper, Til. 5:51 ; State v, Thomas, Id. 511.

2 State V. Spencer, 1 Zab. (N. J.) 201.

RULE 1)2.] PRESUMPTION'S IX FAVOR OF IXNOCENXE. 459

ruled ill Alabama Mmd Missouri.^ The second view pre-
vails in tlio courts of Alabama,^ Arkansas,* California,'
Iowa,' Kentucky,^ Maine,^ Massachusetts,^ Missouri ,^° Korth
Carolina, ^^ Ohio, ^^ Pennsylvania,^^ Texa-^,^* Virginia.^'* And
the third view is maintained in the courts of Illinois, ^^ In-
diana,^^ Kansas, ^^ Michigan,'^ Mississippi,^ Nebraska,'" New
Hampshire,''^ New York^ and Tennessee.** But all of these
theories agree in this — that the presumption of sanity
overcomes the presumption of innocence at the outset and
until some proof of insanity has been shown. And it has
been held from the fact that a person Avas insane a short
time before t!io commission of a criminal act there is no
presumption that be was insane at the time of the act.-'

1 Brlnvea v. State, 5 Ala. 241.

* State r. Iliilin-, 21 iMo. -li;!.

» McAllister v. Stale, 17 Ala. iU; State v. Marler, 2 Ala. 43; State v. Boswell, 63
Ala. 307.

< McKenzie v. State, 26 Ark. 3"4.

6 People f. CofTiuaii.'Jl Cal. 2:;;5 ; People v. Wilson, 49 Cal. 14; People t>. Messers-
mith, 57 Cal. 57.3; People v. JIcDowell, 47 Cal. 134; People v. Wieden, 12 Ky. G82.

8 State V. Feltcr, 32 Iowa 49.

' Graham v. Com., 16 B. Mon. (Ky.) 587; Smith v. Com., 1 Duv. (Ky.) 224; Kriel v.
Com., 5 Bush. (Ky.) 3G2.

* State V. Lawrence, 57 Me. 574.

9 Com. V. Rogers, 7 Mctc. (Mass.) 500; Com. v. Eddy, 7 Gray (Mass.), sai; Com. v.
Heath, 11 Id. 303.

1" State V. Klinger, 43 Mo. 127; State r. Smith, ,53 Mo. 267; State v. Redemeier, 71
Mo. 173 ; State v. Erb, 74 Mo. lO:) ; State v. Baber, 74 Mo. 292.

U State t'. Payne, 80 N. C. 309.

12 Loeffner t>. State, 10 Ohio St. 598; Bond v. State, 23 Ohio St. 349; Bergin v. State,
33 Ohio St. 115.

1' Ortwcin v. Com., 76 Pa. St. 423; Lynch t'. Com, 77 Td. 205; Myers v. Cora., S3 Id.
141 ; PanncU v. Com., 8ij Id. 208; Sayres c. Coin., SS /(/. ;',oi.

J' Webb V. State, 9 Tex. App. 4:)0; King v. State. Id. 553; Johnson v. State, 10 Id.
677; CLark v. State, 8 Id. 3.'>0; Carter r. State, 12 Id. ^00;

li Boswell's Case, 20 Gratt. (Va.) 860; Baccigalupo's Case, 33 7d. 807; Dejarnette ».
Com., 75 Va. 867.

1" Fisher's Case, 23 111.293; overruled in IIopps r. People, 31 111. 3S5; Chaser.
People. 40 111. 3.V2.

1- Polk r. State, 19 Ind. 170; Stevens v. People, 31 Ind. 4S5; Guetig v. State, 66
Ind. m.

1* State t'. Crawford, 11 Kan. 32.

P People !•. Garbutt, 17 Mich. 9; People v. Finley, 38 Id. 48-3.

*" Cunningham v. State, .56 Miss. 272.

21 Wright f. People, 4 Xeb. 408.

*» State V. Bartlctt, 43 X. II. 224 ; State v. Jones, 50 X. II. 369.

" O'Connell r. People, 87 X. Y. 380.

** Dove V. Stale, 3 Ilcisk. (Tcnn ) 348.

«* People V. Smith, 57 Cal. 130 (1880).

460 rraisuMPTivE evidence. [kule 94.

RULE 93. — The presumption of innocence may be
strengthened — as by the relation of the parties

Illustration.

I. A. is indicted for the murder of B. The fact tliat B. is A.'s wife
strengthens the presumption of his innocence. ^

III this case it was said: " It was the prominent fact in
the case that the deceased was the wife of the prisoner.
The presumption thence arising that she was not killed by
her husband, or it was not of malice aforethought, was
powerful. The relation of husband and wife clearly
implies a strong partiality on the part of the husband
towards his wife, and the most ardent desire to protect her
and to render her happy. As a man will consult his own
preservation and pursue his own interest, so, as a general
rule, he will equally regard the protection and interest of
his wife. The motive, for the most part, is both powerful
and unintermitting, and that man must be truly unfortunate
whose experience and feelings do not attest this unques-
tionable truth. Ought not, then, the strong presumption
arising from the prisoner's relation to the deceased, and the
probable motives from this source influencing his conduct, to
be refuted if capable of a refutation ? Of this I think there
can be no question. Declarations of thehusband that he killed
his wife, threats to kill her, and evidence that he maintained
criminal relations with other women, or had a former wife
liviuo-, would all be relevant to overcome this presumption."

RULE 94. But except for the purpose of the trial, a
presumption of guilt arises from the finding of an in-
dictment.

Hhistration.

I. R. is committed for attempt to murder, and indicted therefor by
a grand jury. In a proceeding to reduce or increase his bail pending his
trial, 11. will be presumed guilty .2

1 State V. Watkins, 9 Conn. 47 (1831) ; State v. Green, 35 Id. 203 (1S6S).

2 Ex parte Kyan, 44 Cal. 555 (1872).

RULE 95.] PRESUMrXIONS IN FAVOR OF IXNOCENCE. 4C1

RUI^E O.l. AVlicro a person docs an act which is un-
lawful unless he possesses a certain qualification, the
burden is on the prosecution to show that lio docs
not possess the requisite qualification (H), unless tlie
proof is peculiarly in his possession (IJ), and that it
may involve him in proving his inuocenco does not
chauj^o the rule (C).

Illustrations.

I. The indictment charged II. and E. vith livinc; together as hnsband
and wife without haviim been married. Tlie burden -vvus on the Slate to
show that they were not married. ^

II. A statute prohibited the sale of liquor to a slave without the con-
sent of his ow ner. lu a proi^ccutlon thereon, tlie burden is on the State
to show that the owner did not consent to the sale.^

III. M. is indicted for selling liquor without a license. The burden
was on M. to show the possession of a license.^

IV. W. is indicted for carrying away a slave without the consent
in writing of the owner. The burden of showing that such consent in
writing was not given is on the State.*

V. R. is indicted for coursing deer in an enclosed ground without
the consent of the owner. The burden is on the prosecution to show
that the owner had not given his consent.*

VI. A statute required a master, on the arrival of his vessel, to re-
port it at the office of the chief officer of the customs. In a prosecution
thereon, the burden of proving that the report was not made at the
proper office is on the prosecution.*

VII. The use of steam engines and furnaces in a city being regulated
by ordinance, the burden is on a person who complains of certain works
of the kind as a nuisance, to show a non-compliance with the terms of
the ordinance, or an unlawful or improper use of the works.''

' Ilopner V. State, 10 Ark. 143 (ISTu).

2 State V. Evaus, 5 Joues (X. C.) L. 250 (1S50) ; Stale r. Miller, 7 Ircd. (X. C.)
L.275 (l!^17).

3 State r. Morrison, 3 Dev. (X. C.) L. 209 (iSM). ^
* State f. \VootUy,2 Jones (X. C.) L. 276 (1S55). .

» Kex f. Rogers, 2 Cami).C54 (ISll).

« United States r. Galacar, 1 Sprague (U. S.),515 (1S52).

' Call V. Allen, 1 .yien (Mass.), 137 (1361).

462 PKESUMPTIYE EVIDENCE. [rULE 95.

The general rule, both in civil and criminal causes, is
that the burden of proof is on the party holding the affirma-
tive, but there are some exceptions in M'hich the proposi-
tion, though negative in its terras, must be proved by the
party who states it. As, for instance, in a prosecution for
a penalty given by statute, if the statute in describing the
offense, contains negative matter, the count must contain
such negative allegation, and it must be supported by
prima facie proof. Such is the case in the prosecutions
for penalties given by statutes for coursing deer in enclosed
ground, on land not the party's own, or taking other prop-
erty not having the consent of the owner, or for selling as
a peddler, goods not the produce or manufacture of the
country, or for neglecting to prove a will without Just ex-
cuse made and accepted by the Judge of probate therefor.
In these and the like cases, it is obvious that plenary proof
on the part of the affirmant c:m hardly be expected, and
therefore it is considered sufficient if he offer such evidence
as, in the absence of counter testimony, would afford
ground for presuming that the allegation is true. This, we
have said, is the general rule, and those, among others, are
the exceptions to this rule, but there is a solitary exception
to the exceptions which we have stated, and that is the case
where the negative averment is particulary within the
knowledge of the other party, in which case the averment
is taken as true unless disproved by that party. Such, for
instance in civil or criminal prosecutions for a penalty for
doing an act which the statutes do not permit to be done
by any person except those who are duly licensed there-
for— as for selling liquors, exercising a trade or profession,
orthellke. " Here, the party, if licensed," it was said in
case I., " can immediately show it without tlie least incon-
venience, whereas if proof of the negative were required, the
inconvenience would be very great. * * * 'Qxxt in this
case it might be as inconvenient to the defendant to prove his
marriage with the woman as it would be to the State to

RULK 95.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 463

prove circumstances to show that they were not really mar-
ried." Ill Commonwealth v. jr/^wr/ow,nhe defendant was
indicted for selling liquor without a license. The court
held that as the only authority from whom a license could
be obtained Avas the board of county commissioners, who
kept a record of all licenses issued, it was incumbent on the
prosecution to produce prima facie evidence that the de-
fendant was not licensed. "The general rule is," says
Shaw, C. J., " that all the averments necessary to consti-
tute a substantive offense must be proved. If there is any
exception it is from necessity, or that great difficulty
amounting practically to such necessity, or, in other words,
where one party could not show the negative, and where
the other could, with perfect ease, show the affirmative.
But if a party is licensed as retailer under the statutes of
this commonwealth, it must have been done by the county
commissioners for the county where the cause is tried, and
within one year next previous to the alleged offense. The
county commissioners have a clerk, and are required by
law to keep a record or memorandum in writing of their
acts, including the granting of licenses. The proof is
equally accessible to both parties ; the negative averment
can be proved with great facility, and, therefore, in con-
formity to the general rule, the prosecutor ought to produce
it before he is entitled to ask a jury to convict the party
accused."^

In case II. it was said : *' It is manifest that the owner,
em[)loyer, or manager of a slave can as easily be called on
the part of the State to prove that he gave permission in
writing to the slave to purchase or receive as a gift spiritu-
ous liquors, as for the defendant to call him or any other
person to prove the contrary."

In case IV., case III. was distinguished. Two general

» 24 Pick. (Mass.) 374 (1837).

» See, also, CommnnwMlth v. Kimball, 7 Mete. (Mass.) 304 (1843) ; Timson v
Moalton.S Cuah. (MiiBd.) 26'J (184y); Wilson v. Melvin, 13 Gray (Mass.), 73 (1859).

4G4 PKEsmirxivE evidence. [i.ule 95.

rules it was said came in conflict in such cases, the rule that
all the facts necessary to constitute the oUcnse must be
proved by the prosecution and the presumption of inno-
cence. "It will not be disputed that the one which sup-
ports the presumption of innocence ought to be predominant
and ought to yield to the other, unless it impose no hard-
ships upon the defendant and be necessary to prevent a
serious practical difficulty in the execution of the
law. * * * The principle upon which all these cases
(case II. and those in accord therewith) have been sustained
is a plain, practicable, and intelligible one. It imposes no
hardship upon a defendant to require him to produce a writ-
ten document which his interest, as well as his duty, requires
him to keep as a justification for acts which he may do
every day and many times every day. It may well be taken
as conclusive proof against him that he has no such docu-
ment when he fails to produce it. It is true that he may by
accident have lost it, but such instances are so rare that they
ought not to aflect the rule, especially when it is considered
that he can, by proper application, procure another license or
prove its loss and give satisfactory evidence of its con-
tents. * * * So understood, the great conservative prin-
ciple so essential to the security of those charged with crime,
that they shall be presumed to be innocent, until the
contrary is shown, will be preserved in all its integrity.
"Where no necessity can be shown for departing from such
general rule, it must embrace an averment, though nega-
tive in its character. This is not only consonant Avith
principle, but will be found supported by the highest
authorities."

And it has been held that where a public officer does
an act which would be a violation of his duty unless
certain terms or conditions had been performed by an
individual, such performance will be presumed to have
taken place.^

1 Titus V. Kimbro, 8 Tex. 210 (1852),

RULE J)0.] TRESUMPTIOXS IN FAVOR OF IX^^OCE^'CE. 405

B.

I. A statute prescribes apciuUty for practicing medicine without a
license, lu a prosccutiou tliei-cou tlie burileu is ou Ibc tlefcndant to show
a license. 1

II; A statute prohibits a person from having p:arae in liis possossiou
unless he possesses certain qualilicalions Tiie burden is ou a person
prosecuted under this act to sliow these qualilications.^

III. A statute prohibited importations of poods from England except
in neutral vessels; in a prosecution thereon the burden is ou the de-
fendant to show the ueutralityof the vessel.^

IV. An indictment is for retailing liquors without a license; the bur-
den of proving a license is on the defendant.*

V. A statute prohibits the permitting of more than five slaves to as-
semble without the consent of the owners; it Ijcing proved that more
tlian live slaves assembled on the defendant's lot, the burden is on him
to prove the consent of the owners. ^

YI. B. is charged with selling diseased meat without making the same
Itnown to the buj-er; it is proved that B. sold diseased meat. The bur-
den is ou B. to show that he disclosed its condition to the buycr.^

VII. A statute punishes the injuring of any l^nilding " not having the
consent of the owner thereof." In a prosecution thereon the burden is
on the defendant to show such consent.'

VIII. W. is indicted for keeping a ferry without a license; the burden
is on W. to prove a license.*

IX. Several persons are found together under circumstances which
would render them guilty of riot, unless they are patrols acting under
authority of law; the burden of proving that they are patrols is on
them.9

1 Apothecaries' Co. v. Benlley, Ry. & M. 159; Sheldon v. Clark, 1 Johns. (X. Y.)
513 (IbOG).

• King V. Turner, 5 M. & S. 206 ; Rex v. Stone, 1 East, 639 ; Spiercs r. Parker, 1 T,
R. 144; Je;f.s V. Ballard, 1 15. & 1'. 4iiS; Smyth r. Jeffries, 5 Trice, 258 (1821).

3 United States v. Ilayward, 2 Gall. (f. S.) 4S.> (1S15).

* Geuingr. State, 1 McCord (S. C.),:)T3 (1S22) ; Slate v. Morrison, 3 Dev. (N. C.)
290 (is:!l) ; Ilaskill v. Commonwealth, :5 B. Mon. (Ky.) 312 (1843) ; Shearer v. Slate, 7
Blackf. (Ind.) 99 (1G44) ; State v. Crowell, 2.j Me. 171 (1S45) ; Harrison's Case, Ros-
coe Cr. Kv. 60 ; State r. Edwards, GO Mo. 490 ( 187.)).

<> Comraonwculth r. Conner, 5 Leigh (Va.), 71S (1834).
« Seibriphtt'. State, 2 W. Va. 591 (1867).

7 State r. Whittier, 21 Mc. o41 (1842).

8 Wheat f. State, 6 Mo. 4J5 (1S40).

e State f. Atkinson, 6 Jones (N. C), 65 (1868).

30

466 PKESUMrxivE evidence. [kule 95.

In case II., Lord Ellcnborough said: "The question is
upon Avliom the onus lorohandi lies, whether it lies upon the
person who affirms a qualification to prove the affirmative
or upon the informer who denies any qualification, to prove
the negative. There arc, I think, about ten different heads
of quahfication enumerated in the statute to which the proof
may be applied ; and according to the argument of to-day
every person who lays an information of this sort is bound
to cive satisfactory evidence before the magistrates to neg-
ative the defendant's qualification upon each of those sev-
eral heads. The argument really comes to this, that there
would be a moral impossibility of ever convicting upon such
an information. If the former should establish the nega-
tive of any of these different qualifications that would be
insufficient, because it would be said nonliguet but that the
defendant may be qualified under the other. And does not,
then, common sense, show that the burden of proof ought
to be cast on the person who, by establishing any one of the
qualifications, will be well defended?"

C.

I. A. points a gun at B. In a prosecution for assault, the presumption
is that the gun was loaded. ^

II. A. is indicted for murder; he pleads that he is under the age of
presumed capacity. The burden is on A. to prove this.-

*' The prosecutor could not, in one case out of a hundred,
prove positively the fact that the gun was loaded when,
if it was not, it was easy for the accused to remove
the presumption, and show that it was not and that he
knew it was not, by proclaiming the fact and inviting an
examination."

In case II., as the subject of direct proof, the onus was on
the prisoner, as the reputed age of every one is peculiarly

1 Caldwell v. State, T> Tex. 19 (1840).

» State V. Arnold, 13 Ired. (N. C.) L. 184 (1851).

1

RULE 96.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 4G7

within his own knowledge, and also the persons by whom it
can be directly proved.

RUIjE 96. — A person is presumed to intend the natural
and legal consequences of Lis acts.

Illustrations.

I. A debtor knowing himself to be insolvent, executes a bill of sale
and an assignment of his book accounts to one of his creditors; the pre-
sumption is this was done with the iutentiou of giving a preference to
sach creditor.^

IT. A married man is proven to have entered a house of prostitution
in the evening and to have remained all night. The presumption is that
he committed adultery while there. ^

III. A baker is charged with delivering adulterated bread for the use of
a public asjium. It is proved that A. delivered the bread. The pre-
sumption is that he iutended it to be eaten.'

IV. B. is charged with setting fire to a building with intent to injure
the owner. It is proved that B. fired the building. The presumption
arises that he intended to injure the owner.*

V. A. forges the name of B. to a bill of exchange and negotiates it.
The presumption is that A. intended to defraud B., and his iutentiou to
pay it when it became due is irrelevant.*

VI. B. forges C.'s name to a check on the bank of D. C. has no
account there. The presumption is that B. iutended to defraud C.^

VII. A. was employed by B. to purchase stock to a certain amount. A.
gave B. a forged receipt for stock for that amount. The presumption ia
that A. did this with the intention of defrauding B., and B.'s opinion that
he did not intend to defraud is irrelevant.''

VIII. C. is indicted for issuing a forged bank-note with intent to
defraud the bank. The note was issued by C. to a third person, aud it

1 Ecker r. McAllister. 45 Md. 200 (1876) ; and see Gardner v. Lewis, 7 Gall. (U. S.)
377 (18«).

« Ev.-ins V. Evans, 41 Cal. 103 (1S71) ; Astley v. Astley, 1 Hagg. Ecc. 720 (1S28)
« Kiiigr. Dixon, 3 M.& S. Vl (1814).

* U r. Fanning:, R. & U. 207 (ISll).
». R. V. Hill, 2 Moody, 30 (1S3S).

• R. V. N:ish, 2 Den. C. C. i'M (1852).
T R. V. Sheppurd, R. & R. 160 (1809).

4G3 RESUMPTIVE EVIDENCE. [kULE 96.

appeared that its eircciitlon was such as to render its spuriousness easily
detectable by the ollicers of the bank -who must examine it before paying
it; but this an ordinary person would not discover. C. is presumed to
have intended to defraud the bauk.^

IX. A. sets fire to a building. The presumption is that he intended
to destroy it. 2

X. A statute provided that the failure to pay over public money by a
public ofQcer should be puuishable. A public officer was indicted for
failing to turn over as required a license fee received by him. The pre-
sumption is that the failure was willful.'

In case III. Lord EUenborongh said, that it was a univer-
sal principle that when a man is charged with doing an act,
of which the probable consequence may be highly injurious,
the intention is an inference of law resulting from the doing
the act, and here it was alleged that he delivered the loaves
for the use and supply of the children, which could only
mean for the children to eat, for otherwise they would not
be for their use and supply.

" The recorder," said Maule, J., in case VI., " seems to
have thought that in order to prove an intent to defraud,
there should have been some person defrauded, or who
might possibly have been defrauded. But I do not think
that at all necessary. A man may have an intent to
defraud and yet there may not be any person who could
be defrauded by his act. Suppose a person with a good
account at his banker's, and a friend with his knowledge
forges his name to a check, either to try his credit or to
imitate his handwriting, there would be no intent to defraud,
though there might be parties who might be defrauded;
but where another person has no account at his banker's,
but a man supposes that he has, and on that supposition
forges his name, there would ])e an intent to defraud in that
case, although no person could be defrauded."

1 R. V. Maz.agora, R. & R. 291 (1815).

« People V. Orcutt, 1 Park. C. C. 2.52 (1851).

2 State V. Heatou, 77 N. C.501 (1877).

RULE 97.] PRESUMPTIONS IX FAVOR OF INNOCENCE. 4G9

In case X. it was said : "As men do not generally violate
tho criminal code, the law presumes every man innocent,
and this presumption of innocence is to be observed by
the jury in every case. But some men do violate the
law, and as they seldom do unlawful acts with innocent
intentions, the law therefore presumes every act in itself
unlawful, to have been criminally intended until the con-
trary appears. A familiar example is on the trial of a
case of homicide. Malice is presumed from the fact of
killing, and the burden of disproving the malice is thrown
upon the accused. Tho same principle pervades the law in
civil as well as criminal actions, Indeed, if this were not
so tho admmistration of the criminal law would be practi-
cally defeated, as there is in most cases no other way of
sustaining the intent than by establishing the unlawfulness
of the act."

BULE 97. — "Where an act is criminal per se a criminal
intent is presumed from the commission of the act.^

Illustrations .

I. N. is proved to have been stabbed with a dirk knife by T., from
which wound he inslaully died. T. is presumed to have intended to
kill N.2

II. S. shoots at C. who is on horseback. The ball takes effect on C.
and kills him. S. testifies that he shot at C. intending only that his horse
should throw him. The presumptiou is that S. intended to kill C

In CommomveaJth v. Webster,^ Chief Justice Shaw said :
*' The ordinary feelings, passions, and propensities under
which parties act are facts, known by observation and

1 People r. March, 6 Cal. W3 (185G) ; Murphy v. Com. 23 Grat. 960 (1873) ; McCono
r. High,2i Iowa, 336 (18<>3) ; Murphy v. .stale, 37 Ala. U2 (1861); Carroll v. Stale, 23
Ala. 28 (1853;.

2 Com. (-.York, 9 Mete. 93 (1815); Murphy v. People. 37 III. 447 (186.5); Kiggs r
State, 30 Miss. G3G (1850); Slalo v. r.urtraiul, 3 Ore. 61 (1868); Stale v. Holme, 51
Mo. 153 (1873) ; Conner v. State, 4 Yerg. 137 (1833).

8 Slate f. Smith, 2 Strobh. 77 (1847).
* 6 Gush. 316 (1850).

470 PRESUJIPTIVE EVIDENCE. [RULE 97.

experience ; and they are so uniform in their operation
that a conclusion may be safely drawn that if a person acts
in a particular manner he does so under the influence of a
particular motive. Indeed, this is the only mode in which
a large class of crimes can be proved. I mean crimes
which consist not merely in an act done, but in the motive
and intent with which they are done. But this intent is a
secret of the heart which can only be directly known to the
searcher of all hearts ; and if the accused makes no decla-
ration on the subject, and chooses to keep his own secret,
which he is likely to do if his purposes are criminal, such
criminal intent may be inferred, and often is safely inferred
from his conduct and external acts."

Said Chief Justice Shaw, in case I.: "A sane man, a
voluntary agent, acting upon motives must be presumed to
contemplate and intend the necessary, natural, and prob-
able consequences of his own acts. If, therefore, one vol-
untarily or willfully does an act which has a direct tendency
to destroy another's life, the natural and necessary conclu-
sion from the act is that he intended so to destroy such per-
son's life. So, if the direct tendency of the willful act is
to do another some great bodily harm, and death in fact
follows as a natural and probable consequence of the act,
it is presumed that he intended such consequence, and he
must stand legally responsible for it. So, where a danger-
ous and deadly weapon is used with violence upon the per-
son of another, as this has a direct tendency to destroy life,
or do some great bodily harm to the person assailed, the
intention to take life or do him some great bodily harm is a
necessary conclusion from the act." And to the same
effect is the language of the chief justice of Pennsylvania ;
*' He who uses upon the body of another at some vital part,
with a manifest intention to use it upon him, a deadly
weapon, as an ax, a gun, a knife, or a pistol, must in the
absence of qualifying facts, be presumed to know that his
blow is likely to kill ; and knowing this must be presumed

EULE 97.] rRESUMPTIONS IN FAAOll OF INNOCENCE. 471

to intend the death which is the probable and ordinary
consequence of such an act." ^

In case II. it was said: " If one were to fire a loaded jnin
into a crowd, or throw a piece of heavy timber from the
top of a house into a street filled with people, the law would
infer malice from the wickedness of the act ; so, also, the law
will imply that the prisoner intended the natural and prob-
able consequence of his own act, as in the case of shooting
a gun into a crowd, the law will imply from the wantonness
of the act, that he intended to kill some one, though it
might have been done in sport. If the prisoner's object
had been nothing more than to make Carter's horse throw
him, and he had used such means only as were appropriate
to that end, then there would have been some reason for
applying to his case the distinction. * » * j^^i jj^ this
case the act indicated an intention to kill — it was calcu-
lated to produce that effect and no other — death was the
probable consequence and did result from it.

*' If a man raises his rifle and deliberately fires its con-
tents into the bosom of another, or by a blow with an ax,
which might fell an ox, buries it into the brain of another,
the inference from the act is irresistible that death was
meant, and so the law presumes.

" The inferences of the mind, which are equally presump-
tions of law, are certain and conclusive in proportion as the
acts, from their nature and character, are certain to result
in death.

*' Thus, the plunging of a poignard into the heart of
another, we do not doubt, was intended to kill, but if aimed
only at the arm or leg, though death may be the result, yet
the mere fact of giving such a blow, so long as that is the
only criterion by which W'e judge, renders the intent more
doubtful and the inference less stroni;. So if one beat a full-
grown man with his fist, and death ensues, we would ordi-
narily feel far more doubt that death was intended than if it

1 Agnew, C. J., in Com. v. Drum, 68 Pa. St. 17 (1888).

472 rKESUMPTivE EVIDE^-CE. [rule 97.

had been produced by the use of a dangerous weapon. So,
too, re2i;ard may be bad to the relative strength and powers
of endurance of the parties, as well as to the mode in which
the violence is applied.

"A powerful blow given by the fist alone (but not
repeated) upon the head of a full grown man would not
ordinarily be regarded as intended to produce death ; but
what else could be inferred if the same blow were planted
upon the temple of an infant child !

" In many cases the inference that death is intended is as
strong when perpetrated by a drunken as when perpetra-
ted by a sober man. Thus, if by a deadly weapon,
as by a rifle or a bowie knife, a bullet or blow
is sent directly or designedly to some vital spot, we
should infer that death was intended with almost equal cer-
tainty, whether the perpetrator were drunk or sober. So,
too, when death is produced by poison, and we see in the
mode of its administration stealthy calculation, we would
infer that death was intended, whether he 'who administers
the poison was in a state of sobriety or intoxication, since
in the very character of the act we c.ould read design.

"But we also know that intoxication produces more
effect upon the nervous system of some than of others.
It clouds and obscures the judgment of one more than it
does another. It produces greater extravagance of exertion
and action in some than it does in others, and sometimes
consequences result from such extravagant exertion and
action of which the party himself had no idea. All tliese
things are to be considered by this jury in determining
upon this question of intent."

Sub-Rule 1. — But ivhen a speajic intent is required to
make an act an offense, the doing of the act does not
raise a presumption that it was done with the specijic

intent.

Illustrations.

I. R. is charged with assaulting with intent to murder one E. It is

KULK 97.] rnESUMrxiONS ix favok of innocence. 473

proved that R. fired a loaded pistol at E. There is no presumption that
R. intended to murder E.^

II. A statute makes a willful, deliberate and premeditated killinir mur-
der in tlie lirst dc^rte. 15. kills C. There is no presumption that the
killing was deliberate and premeditated. ^

In case I. it was said: " The general rule is well settled,
to which their are few if any exceptions, that when a
statute makes an offense to consist of an act combined with
a particular intent, that intent is just as necessary to he
proved as the act itself and must be found by the jury, as
matter of fact, before a conviction can be had. But espec-
ially when the offense created by the statute, consisting of
the act and the intent, constitutes, as in the present case,
substantially an attempt to commit some higher offent^e than
that which the defendant has succeeded in accomplishing by
it, we are aware of no well founded exceptions to the rule
above stated, and in all such cases the particular intent
must be proved to the satisfaction of the jury ; and no intent
in law or mere legal presumption differing from the intent
in fact, can be allowed to supply the place of the latter."

Where one slays another with a deadly weapon, the pre-
sumption is that he did it voluntarily^ and with malice*
So from proof of a design to injure another, malice is pre-
sumed.*^ Where a statute makes a willful, deliberate, and
premeditated killinpr murder in the first degree, and it
appears that a killing took place (intentional, not acci-
dental), there is no presumption that it was deliberate and
premeditated.* But from the simple act of killing, the law
presumes murder in the second degree.^ When a homicide

1 Roberts t- People, 19 Mich. 401 (1870) ; Mayhow r. People, 10 7ff.212 (1862).

» Com.f. I)runi,.'i8 I'a. St. 0 (isTti) ; Suite v. Much. 11, (;4 Mo. V.n (ISTC); >fate v.
Foster, 61 Id. 640 (1876) ; Stale v. Laue, C4 Id. 319 (1876) ; Uaiiiby v. Slalo, C6
Tex. 523 (1872).

3 Oliver r. State. 17 Ala. .'587 (18.^0).

* Murphy v Slate, 37 Ala. 142 (1861) ; Carroll r. State, 23 Ala. 28 (1853).

«- JlcCord f. High, 24 luwa, 3;;6 (1868).

« Slate r. Foster, 61 Mo. 549 (1876) ; Commonwealth r. Dunn. 58 Pa. St. 9 (1S76) ;
State r. Mitchell, 64 Mo. 191 (1876) ; State r. l.ano, (U Mo. 319 (1ST6).

■ siaio f. Uassert, 6.') Mo. 352 (1S77) ; btaio r. Evans, 65 Mo. 574 (1877); Stater.
Turner, W right (O.) 20 (1831).

474 rPvESUMPTiVE evidence. [uule 97.

has been proven, that fact alone authorizes the presumption
of malice, and, unexplained, would warrant a verdict for
murder in the second degree. But express and premed-
itated malice, can never be presumed; it is evidenced by
former grudges, previous threats, lying in wait or some
concerted scheme to kill or do some bodily harm, as poison-
ing, starving, torturing, or the attempted perpetration of
rape, robbery, or burglary, and these evidences of express
malice, or some of them, must be proven as directly as the
homicide, before the jury are authorized in finding a ver-
dict for murder in the first degree.^

"Such being the general characteristics of presumptions of
fact, I proceed to notice specially some of the more promi-
nent among these presumptions, and the first that strikes
the eye is the presumption, as it is called, of intent. The
first criticism here to be made is that in setting up this pre-
sumption we pass from the sphere of inductive reasoning
aud enter upon that of deductive; and, in so doing, depart
from the true field of practical jurisprudence. The syllo-
gism presented to us is as follows : —

** Whoever does an act iutended it:
A. did this act;
Therefore he intended it. "

* 'But the major premise, like all other universal and abso-
lute statements involving human action, is untrue. Acts are
so far from being always intended by those to whom they
are imputable, that in a large number of cases they are
unintended. Negligent offenses are perhaps more numer-
ous, and at the same time more varied, than intended
offenses. For one effect i)roduced by us which corresponds
to our intent, there may be a dozen which do not corre-
spond. A telegraph operator may delay for half an hour
forwarding a message. His intent, we may presume, is to
get his dinner when it is ready. But this delay may pro-
duce a multitude of unintended injuries. It may discom-

1 Hamby v. State, 36 Tex. 523 (1872).

RULE 97.] riiESUMrrioNS in favor of innocence. 475

poso a whole system of railroad connections, so that in
some remote spot, of which perhaps the operator may have
never thought, a collision may occur. It ni;iy prevent in-
numerahle appointments from being fulfilled; it may cause
innumerable injuries to persons or property on the wide
system of roads it affects. The negligence, in fact, usually
operates on a far wider surface tiian the willlul act, simply
because the willful act is usually insulated and intrusive,
while the negligence is an omission in the performance of
one of a long series of inter-dependent duties, of which,
when one falls all fall. But between negligence and malice
there is this fundamental distinction : the first is a lack of
intent, arising from intellectual defect ; the second is a bad
intent, arising from moral defect. It is of the essence of
malicious offenses that they are intended ; it is of the essence
of negligent offenses that they are not intended. Of a
majority of the cases in which one man invades the rights
of another, we may safely say the injury, in the foi-m it
was perpetrated, was unintended. As a majority of the
cases covered, therefore, by the proposition before us, it is
false.

*' We must also remember, in further illustration of the
conclusion just stated, that there are few cases in which the
object intended, even among what are called malicious
crimes, fs actually affected. A number of scholastic dis-
tinctions have been taken in this relation, and have been
considered by me elsewhere. It is sufficient, at present,
stripping them of their technical forms, to notice some of
the more prominent.

"1. An unintended object may fortuitously intervene be-
tween a blow aimed, and the person intended to be hurt.
A., for instance, shoots at B. After the pistol is aimed,
and at the moment of its discharge, A. 's child suddenly
darts in the way. The killing of A.'s child, so far from
being intended by A., is of all things the most abhorrent to
him.

" 2. B. is struck by A. when mistaken for C. Here A.

473 PEESUJIPTIVE EVIDEXCE. [llULE 97.

intends to strike B., but intends to strike him under a
mistake of person. The intended object is hit, but the
object is Invested with wrong attributes, and is aimed
at under the false belief that it possesses these attri-
butes. A., for instance, as in LevetCs Case, shoots at a
casual visitor, B., imagining B. to be a burglar. Or A.
shoots at his child, B., imagining the child to be an
encm^Mvhom he designed to kill. Here there is no inten-
tion to kill B., as B. really is, though there is an intention
to kill some one whom B. is supposed to be..

"3. Or an act may be from a contingent intent. A. shoots
atB., knowing that B. is in a place {e.g., a railway car-
riage), in which other persons are sitting. A. knows that
he runs the risk, when shooting at such an object, of killing
another person than the one at whom he aims. He kills C,
sitting next to B. Undoubtedly he may be regarded as em-
bracing C within the scope of his purpose. But neverthe-
less, he did not intend to kill C, and would have avoided
the contingency of so doing if he could have done so with-
out abandoning his purpose of killing A.

"4. The victim is not mistaken for another, nor killed for-
tuitously, nor killed incidentally to the attempted killing
of another, but killed because he is falsely supposed to have
property on hira which can be readily appropriated by the
assassin, or falsely supposed, as in the remarkable case of
the murder of White by Crowninshield, to stand in the way
of an inheritance.

" Now, in no one of the four cases above given does the
intent square with the execution, yet of wiiat are called
malicious killings these categories constitute a large propor-
tion. Taking them in connection with negligence, we may
say, therefore, that in only a small portion of offenses does
the offender execute that which he really intends. It is not
generally true, therefore, but generally false, that an act is
intended by its perpetrator.

"Does this, again, land us in skepticism? Because we
have to reject the proposition that all offenses are intended,

RULE 97.] PKESU3IPTIONS IN FAVOU OF IXXOCENCE. 477

are wc to sweep out of existence the entire category of mali-
cious crimes, and say that there is no way in which a malicious
crime can bo proved? So far from this being the case, the
rejection of the false proposition here criticised leads us to
the only logical and just way in which malice can be estab-
lished. It undoubtedly imposes higher intellectual labor
on bench and bar, and requires from them higher intellect-
ual gifts, than did the old system by which malice Avas at the
outset assumed. It undoubtedly is an easy thing to say,
'he did it, therefore he did it maliciously and intention-
ally.' But it is an untruth in many cases, and in all cases
it is a. peiilio principii ; sometimes leading to bad pleading,
causing men to be indicted for the wrong crime instead of
the crime really committed; sometimes oppressing innocent
men, by throwing tlic burden of proof on them, when the
burden is really on the other side; sometimes producing
acquittals because the jury feel that the assumption is an
outrage on common sense, as when they are told that shoot-
ing a tame fowl with intent to steal, when the ball glances
and strikes B., whom the assailant did not see, and had no
reason to imagine to be in the neighborhood, is shooting at B.,
' with intent the said B., feloniously, willfully and of mal-
ice aforethought, to kill and murder.' The only logical
and right way is to indict a man for what he really docs.
If he is trying to steal a tame fowl, then he is indictable
for an attempt at larceny. If he kills a man negligentl}'
when trying to steal the fowl, then he is indictable for
negligent homicide. And when he is indicted for an
intentional and malicious act, then the conclusion is to be
reached by a canvassing of all the circumstances of the
case. No two cases are precisely alike. There is no rule
which tits absolutely even two cases. We must \)\xt all the
facts together, and examine Avhether from them, by free
logic, we can infer malice. The process is not deductive,
but inductive. It is determinable not a priori by any
postulate of positive jurisprudence, but, after the evidcnco
is in, by inference from all the circumstances of the case.

478 PRESU3IPTIVE EVIDENCE. [kULE 98.

The question, therefore, is one of fact for the jury, to be
adjusted by the law of sound reasoning, not by technical
jurisprudence to be absolutely pronounced by the court.
Yet, "while for the jury, and, in the sense above stated, a
question of fact, it is also a question of law in its most
comprehensive sense, of the law of inductive proof. And
to this law, as pouring its light upon all the circumstances
of the case, should the attention of counsel be turned in
their argument, and of the courts in their charge."^

RUXiE 98. — Possession, knowledge, or motive may over-
tlirow tlio presumption of innocence, and raise in its
place a presumption of guilt.

*• If A. brings an action of trover against B. for the con-
yersion of a horse, and proves title in himself and a demand,
it devolves the burden on B. of proving that the title of A.
has been divested or that he has a better. And it will not
be presumed that B. has purchased the horse of A. If the
close of A. has been broken, and a fruit tree dug up and car-
ried off, and that tree is found set out in the yard of B.,
especially if he is doing some act which shows that he has a
knowledge of its being there, it affords prima facie evi-
dence that he was the trespasser. So if a house had been
removed from the land of A. and is found on the land of B.
and occupied by B., under the plea of not guilty, in an
action of trespass, it devolves upon B. the necessity of
accounting for its being there consistently with his inno-
cence." ^ A presumption is a probable inference which
common sense draws from circumstances usually occurring
in such cases.^ There is a wide difference between pre-
sumptions of law and presumptions of fatt. The law
draws no presumption or inference but from facts which if
unexplained are conclusive of guilt. But presumptions of

1 Presumptions in Criminal Cases, Francis Wharton, Grim. Law Mag. 1831.
» Kincli V. Alston, 2 II. I'. (Pa.) 85 (1832).
» State V. Tibbert, 35 Me. 81.

RULE 98.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 4 79

fact are to be drawn by the jury, and every fact that tends
to prove any fact that is evidence of guilt, however conclu-
sive such fact may be, is admissible evidence.^ Where
property has been stolen, and recently thereafter the same
is found in possession of a party, it is incumbent on him to
account for such possession in a manner consistent with his
innocence or rebut the presumption of guilt arising by rea-
son of such recent possession, and until he so accounts for
such possession or so rebuts such presumption, the law pre-
sumes he is the thief. The possession of the fruits of crime
recently after its commission is ^^riwa facie evidence of
guilty possession, and if unexplained cither by direct evi-
deme or by attending circumstances or by the character and
habits of life of the possessor, it is taken as conclusive.
And the strength and character of this presumption will
depend very much on the kind and description of the prop-
erty when considering the recent possession and all the
various circitmstances surrounding the case." ^ The rule
has been stated in a North Carolina case to be, that it is
only where the stolen goods are found in a party's posses-
sion so soon thereafter that he could not have reasonably
got the possession unless he had stolen them himself, that
the law presumes that he is the thief ,^ and this is a well
known limitation to the rule as stated above. " Possession
of stolen property must be recent, after the theft, in order
to raise the presumption of theft." *

It is held in Illinois that it is error to instruct the jury
that the possession of stolen property soon after it is stolen
\% of itself inima facie evidence that it was stolon by the
party in whose possession it is thus found, and throws the
burden on him of showing that his possession was honest.'
Everything connected with the possession must be consid-

1 Balaam «. State. 17 Ala. 451 (1&50).

« state r. Gray, 37 M). ■403 (ISGG) ; Mate v. Bruin, 34 Mo. 637 (1SG4).

« State V. Graves, 7-2 N. C. 4S2 (1S75).

« stater. WolfT, 15 Mo. 1G3 (1S51) ; State v. Floyd, 15 Mo. 854 (1852) ; Fackler ».
Chapman, 20 y\o. 240 (1S5.")) ; State r. Crcson, 3S .Mo. 372 (18CC) ; State v. Williams, 54
Mo. 170 (1S7:') ; State v. Hobbins, ^ Mo. 413 (1S77).

<• Coukwright V. People, 35 111. 204 (IStU).

480 PRESUMPTIVE EVIDENCE. [rULE 98.

ered, such as its proximity, whether it was concealed,
"whether the party admitted or denied tlie possession,
"whether other persons had access to the place Avhere it "was

found.

Illustrations.

I. A. being accused of stealing money, afterwards points out where
the money is hidden. The presumption is that A. was the thief.^

II. A. was prosecuted for suffering intoxicating liquor to be drunk
in his grocery. It Avas proved that certain Jiquor sold l)y A. Avas drank
in his store. Jleld, that it was to be presumed that it was drunk with
A.'s permission.2

In case II.it was said:*' The witness proved that the
liquor sold by defendant was drunk at his house, and the
legal presumption arises that this was done by his permis-
sion, as every man is supposed to have a control in his own
house. If this was not the fact, the defendant could have
shown that he forbade the drinking, and it was incumbent on
him to show the matter of defense."

" The effect of particular motives upon human conduct,"
says an eminent WTiter,^ ♦' is the subject of every man's
observation and experience to a greater or less extent, and
in proportion to his attention, means of observation, and
acuteness every one becomes a judge of the human charac-
ter and can conjecture on the one hand what would be the
effect and influence of motives upon any individual under
particular circumstances, and on the other hand is able to
presume and infer the motives by which an agent was actu-
ated, from the particular course of conduct which he
adopted. Upon this ground it is that evidence is daily
adduced in courts of justice of the particular motives by
which a party was influenced in order that the jury may
infer what his conduct was, under those circumstances, and
on the otlier hand juries are as frequently called upon to
infer what a man's motives and intentions have been from
his conduct and his acts. All this is done because every
man is presumed to possess a knowledge of the connection

1 Hn'lson v. State, 9 Terg. (Tenn.) 408 (1836).

a Casey v. State, 6 Mu. G16 (1840). ' Stark. Ev. 50, 51.

RULE 99.] PRESU3IPTI0NS IX FAVOR OF INXOCEXCE. 481

between motives and conduct, intentions and acts, wliich he
has acquired from experience, and be able to presume and
infer the one from the other." As to presumptions of
motive from conduct Bond v. Warrenj^ is an instructive
case. "\V. was sued for an assault on B. The only witness
at the trial was a dau<^hter of B., who testified that on the
occasion complained of, AV. walked into her father's house
and said : ♦* How dare you send a letter to my house;" that
B. replied, «' What do you mean, sir?" and that W. imme-
diately commenced the assault conjplained of. The witness
knew that W. had a daughter; had never seen him at B.'s
house before and did not know of any previous difnculty
between W. and B. The jury were instructed that although
on this evidence they might infer that B. had sent a letter to
"W.'s house, the}' could not presume that the letter had been
sentto W.'s daughter or was otTcnsive or insulting, but, if this
were so, "VV. should show it. On appeal this was held to be
error. " "What motive," said the court, " can fairly and
reasonably be inferred from such conduct but that a letter
was sent by the plaintiff to the defendant's house, which
was, or which the defendant supposed to be, offensive in
its terms? It is impossible to suppose that a sane man
would have acted towards one with whom he was on friendly
terms as the defendant did towards the plaintiff unless he in
some way felt himself aggrieved by the act of the other.
If such an inference, then, was a fair and reasonable one,
the jury had a right to draw it, and the judge erred in in-
structing them otherwise."

RULE 90. — A person on trial for one crime cannot be
presumed guilty because he has, at another time,
committed a similar or different crime, and the latter
fact is not admissible in evidence against him.^

•' Suppose the general character of one charged with
crime is infamous and dciiraded to the last dcirree — that his

1 8 Jonee (N, C.) L. 191 (ISCO). « Ellis r. Day, i Conn. 95 (1821).

81

482 PRESU3IPTIVE EVIDENCE. [llULE 99.

life has been nothing but a succession of crimes of the most
atrocious and rcvoltinoj sort — docs not the knowledo:e of
all this inevitably carry the mind in the direction of a con-
clusion that he has added the particuhir crime for which he
is being tried to the list of those that have gone before?
Why, then, should not the prosecutor be permitted to show
facts which tend so naturally to produce a conviction of his
guilt? The answer to all these questions is plain and decis-
ive; the law is otherwise; it is the law that the prisoner
shall be presumed innocent until his guilt is proved." ^ This
rule is said by Mr. Stephen'* to be one of the most charac-
teristic and distinctive features of the English criminal law,
preventing, as it does, a man charged with a particular
offense from having either to submit to imputations which,
in many cases would be fatal to him, or else to defend
every action of his own life in order to explain his conduct
on the particular occasion when the act was committed with
which he is charged. It is this rule which, perhaps, more
than any other rule of our criminal law, distinguishes the
American and Eno-lish modes of conductinsi; a criminal trial
from the continental. In France the criminal on trial for a
particular crime is confronted with his whole past life, and
every act he has committed against the law is shown for the
information of the jury. The practice is similar in Ger-
many. The English State Trials contain numerous instances
of the admission of evidence of this kind. Thus, in 1G68,
on the trial of Mr. Hawkins, a clergyman, for stealing
some money and a ring from one Larimore, Lord Hale
admitted evidence to show that he had stolen a pair of
boots from a man named Chilton, and that, more than a
year before, he had picked the pockets of one Noble. In
summing up. Lord Hale said, after referring to the cases
of Chilton and Noble: "This, if true, would render the
prisoner at the bar obnoxious to any jury." ^ But the

1 state V. Lapage, 57 N. H. 300 (1876).

2 Ste|(h. Ev., niiic VI., p 195.
« 6 How. St. Tr. 935.

RULE 99.] rUESUMI^IONS IX FAVOR OF IXNOCENCE. 483

bcginnini^ of the oightconth century witnessed t!ie end of
tiiis sy-stem, and the American courts havx never known it.

Ulustratiofis.

I. The question is whether A. coinmitte(J a crime. The fact that he for-
merly committed aiiotlier crime of the same sort, aucl had a teudeucy to
commit crime, is irrelevaut.i

II. L. was indicted for the murder of J., in perpetratini? a rape upon
her. Proof that L. committed a rape on R., some time previous to the
aUeged crime was admitted. Ildd, error.2

III. S. was indicted for murdering his wife by poisoninjj, Proof that
he was criminally iutlraite with one A., whose husband died with the
same symptoms as his own wife, was inadmissible.'

IV. R. was indicted for riot. The fact that, two years previous, R.
had been engaged in another riot was inadmissible.*

V. C. was indicted for forcing the indorsement of V. to a promissory
note; tlie question was wlictlit-r he honestly believed he had authority to
sign V.'s name. The fact tliat he had acknowledged to having made a
similar unauthorized use of the name of G. was inadmissible.*

Vr. K. was indicted for stealing a bag of flour with P.; P. having
turned State's evidence, teslitied that I^. proposed the theft to him, and
at the same time proposed to forge notes on doad men's estates and steal
negro children. The admission in evidence of the latter proposals was
erroneous. '^

VIT. B. was indicted for larceny of bank-hills in snatching them from
the liaud of R. The fact th t B., the next day, enticed R. into an alli-y,
liuocked him down, beat him and robbed him of other bids, is irrel-
evant.'

VIII. C. was indicted for larceny in stealing a hor-^e. The fact that
C, the day previous, stole a sum of money is irrelevant.^

IX. R. was indicted for performing an alwrtion on B. The proof that
K. three years previous, produced an abortion ou W., is inadmissible. »

•

I Rex V. Cole, 1 Phil. Ev. 503. citinp Steph. Dip. Kv. IS.

« Stale V. Lapage, 57 X. II. 215 (t87G) ; Slate v. Walters, 45 Iowa, 389 (1877) ; People
V. Bowcn, 40Cal. 6,54 (1875).

s ShatTner v. Commonwealth, 72 Pa. St. GO (1872).

* Stale V. Reaton, 15 X. H. 174 (1844).

» Peoiile V. Corbin, 50 X. Y. SiH (1874).

« Kinchelow r. Sialo, 5 Humph. (Tenn.) 9 (1844).

I Bonsall r. State, 35 Ind. 460 (1871) ; People i-. liarnes, 43 Cal. 651 (1874).

» R.arton r. Stale, 18 Ohio, 221 (1849).

» Roseuweig v. People, 63 Barb. (N. V.) 634 (1872).

484 PliESUMPTIYE EVIDENCE. [RULE 99.

X. S. was charged with the murder of an illecitimate child of his
daughter, ol which he was the fatlier. Proof that S. had previously
committed a rape on this daughter was inadmissible. i

XI. S. was indicted for murdering her infant child. Proof that S.
had a child before and put it away, is inadmissible. 2

*' It is a maxim of our law," it was said in case II., ** that
every man is presumed to be innocent until he is proved to
be guilty. It is characteristic of the humanity of all the
English-speaking peoples that you can not blacken the char-
acter of a party who is on trial for an alleged crime. Pris-
oners ordinarily come before the court and jury under
manifest disadvantages. The very fact that a person is
charged with a crime is sufficient to create in many minds a
belief that he is guilty. It is quite inconsistent with that
fairness of trial to which every man is entitled, that the jury
should be prejudiced against him by any evidence except
what relates to the issue ; above all, should it not be per-
mitted to blacken his character, to show that he is worthless,
to lighten the sense of responsib'ility which rests upon the
jury, by showing that he is not worthy of painstaking and
care, and, in short, that the trial is w^hat the chemists and
anatomists call experimentum incorpore vili."

In case III. it was said : •• It is a general rule that a dis-
tinct crime, unconnected with that laid in the indictment,
can not be given in evidence against a prisoner. It is not
proper to raise a presumption of guilt on the ground that
having committed one crime the depravity it exhibits makes
it likely he would commit another. Logically, the com-
mission of an independent offense is not proof in itself of
the commission of another crime, yet it can not be said to be
without influence on the mind, for, certainly, if one be
shown to be guilty of another crime equally heinous, it will
prompt a more ready belief that he might have committed
the one with which he is charged. It therefore predisposes

1 Snyder v. Commonwealth, 85 Pa. St. 519 (1877) ; and see Sutton v. Johnson, 63
111.209 (1871).

2 State V. Shuford, 69 N. C. 487 (1873).

RULE 99.] rKESUMmONS IN^ FAVOR OF INNOCENCE. 485

tho mind of the juror to believe the prisoner guilty. To
make one criminal act evidence of another, a connection
between them must have existed in tho mind of the actor,
linking them together for some purpose he intended to
accomplisli, or it must bo necessary to identify tho person
of the actor by a connection which shows tiiat ho who com-
mitted the one must have committed t!ie other. Without
this obvious connection, it is not only unjust to the prisoner
to compel him to acquit himself of two ollcnscs instead of
one, but it is detrimental to justice to burden a trial with
multiplied issues that tend to confuse and mislead the jury.
The most guilty criminal may be innocent of other offenses
charged against him of which, if fairly tried, he might
acquit himself."

" The cases," it was said in case V., '* in which offenses
other than those charged in the indictment may be proved
for the purpose of showing guilty knowledge or intent are
very few, and this, we think, is not one of them. The fact
that the prisoner made an unauthorized use of the name of
G.,if established, shows that he was morally capable of
committing the same offense ajjainst V., but does not lesrit-
imately tend to show that he did so, or that he knew and
understood that V.'s authority had been withdrawn or that
the signature in question had been made with criminal
intent."

It was said in case VI. : *♦ The only object of such testi-
mony, necessarily, is to prejudice the minds of a jury, as it
can by no possibility establish or elucidate the crime
charged. We can well see how a jury who, in tho case
under consideration, might have unhesitatingly refused to
find a verdict against the prisoner upon the evidence of the
witness confined within its legitimate scope, might have been
misled by the proof of the utter baseness and want of prin-
ciple as detailed against him."

In case VIII. it was said: ''Although the court, in this
instance, say that the evidence was only admitted for the
purpose of showing the intent with which the defendant get

486 PKESUMPTIVE EVIDENCE. [rULE 99.

possession of the property, yet wc do not see any connec-
tion between the two transactions that would establish any
legitimate conclusion to be drawn as to that fact. The only
conclusion that we can see that could fairly be drawn from
the evidence would be that the defendant intended to steal
the horses and other property with which he was charged,
because he was a thief and had just before stolen a sum of
money. Each case must be tried on its own merits, and be
determined by the circumstances connected with it, without
reference to the character of the party charged, or the fact
that he may have previously committed similar crimes."

Incase X. it was said: ♦' In case the direct evidence of
the homicide was not entirely satisfactory to the jury, yet
they may readily have concluded, if he was such a monster
as to have committed a rape on his own daughter, he had a
heart sufficiently depraved to commit the murder charged
against him. He was denied that protection, on his trial,
which the law gives to every person charged with the com-
mission of crime."

Other instances may be given. Thus, whore a person was
indicted for burglariously enteringa building, evidence that
there was found on him a key that would open another build-
ing, is inadmissible.^ Ajierson indicted for having stolen
a watch from one person, can not be shown to have previ-
ously stolen a cloak from another person.^ A person indicted
for murder can not be shown to have previously set fire to
the house of the deceased.^ A person indicted for poison-
ing A. can not be shown to have poisoned B. several months
previously.* A person charged with an assault to rob can
not be shown to have committed other assaults.® A per-
son charged with arson can not be shown to have been pre-
viously imprisoned as a pickpocket.®

1 Commonwealth v. Wilson, 2 Cuph. (Mass.) 500 (1849).

2 Walker's case, 1 I.eigli (Va.), .574 (1820).

» stone V. State, 4 Hump. (Tena.) 27 (1843); and see Brock v. State, 26 Ala. 104
(1855).

* Farrarw. State, 2 Ohio St. 54 (18.53).

« Coble r. Stale, 31 Ohio St. 100 (KS7G).

• Cesure v. State, 1 Tex. App. 19 (1876).

RULE 100.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 487

RUTjE 100. — But to prove knowlodg^o or intent (A) or
motive (B), a collateral crime may be shown.

Illustratio7is.
A.

I. A. is indicted for utterini; a banlt-note, knowing it to be forjred.
Evidence lliat A. liad uttered otlier forged notes of tlie same or different
kiud, or tliat be had others iu his possession, is admibsibie.

II. A. is charged with receiving two pieces of sillc from B, knowing
them to have been stolen i)y liim from C; the facts that A. received from
B. many other articles stolen by him from C. in the course of several
months, and tliat A. pledged all of them, are admissible, because rele-
vant to the fact that A. knew that the two pieces of silk were stolen by B.
from C.i

III. A. is charged with attempting to obtain money by false pretenses
by trying to pledge to B. a worthless ring as a diamond ring. The fact
that, two days before, A. tried, ou two separate occasions, to obtain
money from C. and D., respectively, by a similar assertion as to the same
or asimilar ring, and that on another occasion on the same day he ob-
tained a sum of money from E. Ijy pledging, as a gold chain, a chain
which was only gilt, are deemed to be relevant, as showing his knowl-
edge of the quality of the riug.2

IV. W. was indicted for an assault with intent to commit a rape on
M. Proof that W. had previously assaulted M. in the same way was
admissible."

v. A. is indicted for having in his possession intoxicating liquors, with
intent to sell them unlawfully; evidence that he had been previously con-
victed for a similar offense is admissible.*

VI. A. and B. were indicted for burglary in the house of C. Evidence
that a few days previous they agreed to commit a robbery on the j)ersou
of C, but desisted because they believed he hud nothing on him to rob,
was admissible.*

Case rv. is a good illustration of the general rule and its
exception. The prisoner was indicted for an assault with
intent to commit a rape on one Mina Shepherd. On the

1 Dunn's Case, 1 Moody, 146; and see Yarborough v. State, 41 Ala. 403 (1868);
Baker v. 6late, 4 Ark. 56 (1>4'2).

2 Kep. t'. Fr.incis, I., li. 2 O. C. R. 12S; Reg. v. Cooper, 1 Q. 15. P. 19.

« State V. Walters, 45 Iowa, 3SJ (1S77) ; Williams v. State, 8 lluiup. (Tenn.) 5?0
(184S).

* State t'. Neaple, 65 Me. 468 (1876).
6 Stale V. Cowcll, 12 Nev. 337.

488 PKESUMrxivE evidence. [rule 100.

trial, evidence was admitted that the prisoner had previ-
ously assaulted, in the same way, both Miiia and her sister
Dora. The prisoner was convicted, and on appeal the court
held that the evidence as to Mina was properly, but the evi-
dence as to Dora, improperly, admitted. The evidence
of the assault on Mina was proper, as showing the intent
with which the subsequent assault was made, while the
evidence as to Dora, was evidence of a *' distinct sub-
stantive, which cannot be admitted in support of another
offense." So as to knowledge. To this class belong, gen-
erally, those cases in which the crime is the uttering of forged
or counterfeit money, or the receiving of stolen goods. It
may well happen that a person may have in his possession
a single counterfeit bill or coin, without knowing it to be
such, but he would be much less likely to do so twice, and
every repetition of such an act would increase the proba-
bility that he knew that the bills or coin were counterfeit.
But when it appears that a person is in the habit of buying
goods (like old iron) legitimately and honestly, the wrong-
ful act in receiving one article is not competent to prove a
criminal intent in receiving another, differing in time, kind
of property, the person from whom stolen, and the person
from whom received.^

B.

I. T. was indicted for the murder of W., a female. Evidence that T.
had previously maiutaiued crimiual relations with W., is admissible. ^

II. D. was indicted for the murder of W. Proof that D. had previously
been implicated in the murder of E. and that W. was, at the time of his
death, engaged in endeavoring to discover the murderers of E., is ad-
missible.^

III. C. is indicted for murder; to show a motive for tlie crime, it is
proper to show the existence of a secret criminal organization to which
C. belonged.*

1 Coleman v. People, .55 N. T. 81 (1873).

2 Turner v. Commonwealth, 86 Pa. St. 54 (1878).
8 Dunn V. State, 2 Ark. 227 (1830).

« Carroll V. Commousvealth, 84 Pa. St. 107 (1877).

RULE 101.] PKESU5IPTIONS IN FAVOR OF IXXOCENCE.

489

IV. C. is indicted for the murder of 11. The fact that C. had previously
employed 11. to murder one P. is relevant. i

V. W. WIS indicted for the murder of liis wife. Proof of an adulterous
Intercourse between \V. and another woman is admissible. ^

In case IV., the prisoner's counsel argued that as P.'s
death was not the subject of the inquiry, the evidence -was
inadmissible. But Littledale, J., said: "I think I must
receive the evidence on the part of the prosecution ; it is
put thus: That the prisoner and others employed H. to
murder P., and that ho being detected, the pri.soner and
others then murdered H. to prevent a discovery of their
own guilt. Now, to ascertain whether that was so in point
of fact, it is necessary that I should receive evidence re-
specting the murder of P."

RULE 101. A separate crime from that charged may be
shown where it is necessary to prove that the crime
charged was not accidental.'

Illustrations.

I. A. is accused of setting fire to his house in order to obtain insur-
ance money. The facts that A. had previously lived in two other houses,
successively, each of which he insured and in each of which a lire oc-
curred, and that after each of these lires A. received a payment from a
different insurance office, are relevant.*

ir. A. is employed to pay the wages of B.'s laborers, and it is A.'s
duty to malce entries in a boolc showing the amouuts paid by him. He
makes an entry showing that on a particular day he paid more than ho
really did pay. The question is whether this false entry was accidental
or intentional. The fact that for a period of two years A. made other
similar false entries in the same book, the false entry being in each case
in favor of A., is relevant.*

III. The question is, whether the administration of poison to A. by
Z., his wife, in September, 18-48, was accidental or intentional. The facts
that B-, C. and 1). (A.'s three sons) had the same poison administered to
them in December, 18-18, March, 18-1'J, and April, 18il), and that the meals

1 Rex V. Clevcs, 4 Car. & P. 221 (1830).

« St.lte r. Wutkins, 9 Conn. 47.

» State V. Patza, 3 L.a. Ann. 512 (1S4S).

* Ko.^nia f. Gr.TV, 4 Tost. & V. IIOI ; Pteph. Kv. 23.

» Uegma v. UichaiJsou, 3 Fost. & F. 34o; Slci.)li. Ev. 23.

490 pRESUiMPrn^ evidence. [rule 102.

of all four were prepared by Z., are relevant, although Z. was indicted
separately for murdering A., B. and C. and attempting to murder D.^

IV. V. is indicted for shooting at P. ^Yith intent to kill. The defense
is that it was accidental. Proof that V. at another time shot at P. is ad-
missible.2

V. R. is indicted for murdering her infant by suffocating it in bed.
Proof that other children of R. have died young is admissible.'

VI. D. is charged with willfully setting fire to a rick by firing a gun
into it on March 29th. Proof that the rick was also set on fire on March
28th, and that D. was then close to it with a gun in his hand, is admissi-
ble, to show that the fire on the 29th was not accidental.*

In cases like the above it might well happen that a man
niif^ht shoot another accidentally, but that he should do so
twice within a short time would be very unlikely. So it
might easily happen that a man using a gun might fire a
rick once, by accident ; but that he should do it several times
in succession would bevery improhuble. So a person might
die of accidental poisoning, but that several persons should
so die in the same family, at different times, would be very
unlikely. So that a child should be suffocated in bed by its
mother might happen once, but several similar deaths in the
same family could not reasonably be accounted for as acci-
dents. And so in the case of embezzlement effected by means
of false entries ; a single false entry might be accidentally
made, but the probability of accident would diminish at
least as fast as the instances increased.'^

RULE 102. — A separate crime from that charged may
he proved where it forms part of the res gestae.

Illustratiojis.

I. A. is indicted for arson in setting fire to a rick, the property of B.
Evldt-nce of A.'s presence and conduct at fires of other ricks on the same
night, the property of C. and D. isadmissible.^

1 Rex V. Gearing, 18 L, J., M. C. 215; Steph. Ev. 24; Rex v. Cotton, 12 Cox 0. O.
400; Rex V. Gaiiicr, 3 Fost. & F. 681.

2 Rex V. V.jkc, Russ. & Ry. 501 (1823).

« Rcgi na V. Eoden , 12 Cox C. C. 6 ;0 (1874).
* Regina r. Dossctt, 2 Car. & K. 306.
6 St.Tte V. I.apaare, 57 X. 11. 215 (1S70).
0 Regma v. Taylor, 5 Cox C. C. 1^8.

EULE 102.] TRESUIMPTIONS IX FAVOR OF INNOCENCE. 491

II. S. is indicted for killing T. Proof that M. was killed at the e&me
time, and showing the manner of M.'s injuries, is admissible. i

" It frequently happens that, as the evidence of circum-
etances must be resorted to for the purpose of proving the
commission of the particular offense charged, the proof of
those circumstances involves the proof of other acts, either
criminal or apparently innocent. In such cases it is proper
that the chain of evidence should be unbroken. If one or
more links of thnt chain consist of circumstances which tend
to prove that the prisoner has been guilty of other crimes
than that charged, this is no reason why the court should
exclude those circumstances. They are so intimately con-
nected and blended with tlie main facts adduced in evidence
that they can not bo departed from with propriety, and
there is no reason why the criminality of such intimate and
connected circumstances should exclutle them more than
other facts apparently innocent. Thus, if a man be indicted
for murder and there be proof that the instrument of death
was a pistol ; proof that that instrument belonged to another
man ; that it was taken from the house the night preceding
the murder; that the prisoner was there on that night and
that the pistol was seen in his possession on the day of the
murder, just before the fatal act, is undoubtedly admissible,
although it has the tendency to prove the prisoner guilty of
a larceny. Such circumstances constitute a part of the
transaction, and whether they are perfectly innocent in
themselves, or involve guilt, makes no difference as to their
bearing on the main question which they are adduced to
prove." ^

There is another class of cases in which evidence of crim-
inal acts other than the one charged is permitted to bo
shown. These are prosecutions for sexual offenses. Here,
where the charge is that a person has committed the crime
with a particular individual, evidence is admissible of acts

I Ooramonwcalth v. Stnrtcvant, 117 Mass. 122 (1875).
5 WaUtei'B Case, 1 LeigU (Va.), 607 (la'29).

492 PRESUMPTIVE EVIDENCE. [llULE 102.

of indecent familiarity other than the one in question,^ and
even proof of the actual commission of the crime at
another time.^ Such evidence is said to be received for the
purpose of showing an *' adulterous disposition." They
are certainly in conflict with the general principles of the
law.

Where the prisoner undertakes to prove his good char-
acter, the prosecution may, to rebut this, show that his
character is bad by showing his reputation ; but not, accord-
ing to the majority of the cases, particular facts

1 state V. Wallace, 9 N. H. 515; State v. Marvin, 35 N. H. 22; Lawson v. State, 20
Ala. 66 a852) ; State v. Crowley, 13 Ala. 172 (1848).

« Thayer V. Thayer, 101 Mass. 113 (1869), overruling Commonwealth v. Thrasher,
11 Gray (Mass.), 450; Commonwealth v. Laliey, U Gray (Mass.), 91 (1S59) ; Common-
wealth r. Merriam, 14 Pick. (Maes.) 518 (1833); Commonwealth v. Hortou, 2 Gray
(Mass.), 364 (1854).

CHAPTER XX.

THE PRESUMrXIONS IX DISFAVOR OF INNOCE^'CE.

RTJL.E 103. — Where no motive for the commission of a
crime is shown, the presumption of tlic innoronce oi
the suspected person is strcnjfthened. But a motive
being proved a presumption of guilt may arise. ^

In Lake v. People'^ it was said : "A motive for the killing
is sometimes an important if not an essential point on a
trial for murder. But those are cases where the evidence
of the killing is circumstantial. Then it is important to
show that the prisoner had a motive with a view to estab-
lishing that he is the person who committed the act. But
in cases where, as in this, the killing is undisputed, the
question of motive becomes less important. For the mov-
ing cause is often not very apparent; in very many cases
of homicide there is no motive discernible, except what
arises at or near the time of the act. Excited passions or
a desire for vengeance for a real or imaginary insult or
wrong not unf requently lead to the crime. If a case should
arise where it w^as absolutely certain there was no motive
whatever for the commission of the crime it would un-
doubtedly tend to show insanity, for insane persons are
the only ones that act without motives. But wiio can say
there is no motive? "Who can fathom the mind of the
accused and ascertain that there is no hidden desire

1 Somerville r. State, 6 Tex. (App.) 433 (1^70); Smith v. State, 8 Tex. (App.) 3S
(I860,; Yaukc t-. Slate, 51 Wis. 4(16 (1881); Overstrcet v. Stale, 46 Ala. 30 (1S71);
Flanagan r. State, 46 Ala. 703 (1871) ; Kelsoe v. Slate, 47 Ala. 573 (1872). "The exist-
ence or want of motive to commit the crime allcfrctl, is always a legitimate suLject
ol inquiry. In cases depending upon circumstantial evidence, it is sometimes of
vital importance, rsut it is never indispensable to a conviction that a motive fur
the commission of the crime should appear." People v. Kobinson, 1 Park. C. C.
649 (18.14).

» IPark. 0.0.539(1854).

(493)

494 PREsmiPTivE EVIDENCE. [rule 103.

of vengeance, no envy or avaricious passion to be grati-
fied? There is no rule of law which determines what
is ail adequate motive, even where it is necessary to show
one. One man will kill another to obtain $1,000, another
ma}' do the same for a tenth or even a hundrcth part of the
sum ; in each case it is adequate in one sense for the mind
on which it operates. But in truth and in another sense no
amount is adequate to induce a reasonable man to take the
life of another ; nothing will induce a reasonable man to
commit murder ; it is idle to talk, therefore, about an
adequate motive for a reasonable man. What motive
appears in the present case ? The motive said to be assigned
by the prisoner himself is the desire on his part to obtain
certain papers of title which the woman refused to deliver
up. The theory of the prosecution is that there was a con-
troversy, a bone of contention touching the title to the
place, which furnishes the basis of disagreement, quarrels,
exasperation, and finally personal violence. If this be so,
it would undoubtedly have a tendency to show a motive
such as may be fairly supposed to have induced the act.
For slight causes of contest, however unreasonable or un-
just, may be made the ground work of irritations which may
be wrought up by the untoward circumstances between
irrascible dispositions, until one of them may reach the
point of uncontrollable passion, or in other words, the killing
point. But it is contended by the defense that even admit-
tinof a sufficient motive as to the woman, there could not be
any occasion for d"estroying the children. It is undoubtedly
contrary to the general course of nature for a man to mur-
der inoffensive children, and especially when they are his
own. But there is another princi[)le recognized as pertain-
ing also to human nature, and that is that hatred for the
parent is often extended to and visited upon the offspring,
and the same ungovernable rage which would destroy the
mother might impel the offender also to involve her de-
scendants in the common ruin ; upon the principle that they
were a part and portion of the detested mother, or as the

RULE 103.] PRESUMPTIONS IX DISFAVOK OF INNOCENCE. 495

prisoner expressed it, ' as he had commenced the job he
thou^-hthe would finish the breed.' "

And that the prisoner has committed other crimes may be
shown to evidence his motive.^ " Motive is a minor or anx-
ilhiry fact from which, when established in connection Avilh
other necessary facts, the main or primary fact of guilt may
be inferred, and it may be established by circumstantial evi-
dence the same as any other fact. The proper inquiry when
the circumstance is offered is, does it fairly tend to raise an
inference in favor of the existence of the fact proposed to
be proved? If it does it is admissible whether such fact or
circumstance be innocent or criminal in its character. It
does not lie wMth the prisoner to object that the fact pro-
posed as a circumstance is so heinous in its nature and so
prejudicial to his character that it shall not be used as evi-
dence against him if it bears upon the facts in issue. The
atrocity of the act can not be used as a shield under such
circumstances or as a bar to its legitimate use by the pros-
ecution. If it could many criminals might escape just and
merited punishment solely by means of their hardened and
depraved natures. The rule appears to me to be well set-
tled, both by elementary writers and by adjudged cases, that
separate and distinct felonies may bo proved upon a trial
for the purpose of establishing the existence of a motive
to commit the crime in question even though an indictment
is then pending against the prisoner for such other felonies."

Sub-Rule 1. — A motive is proved by showing the desire

of gain (A), the gratification of passion (B), or the

preservation of reputation f C ), accomplisJted or attempted

or able to be accomplislied by the perpetration of the crime

charged.

Illustrations.

I. A poor Itilian boy is killed by a man iu the streets. The motive i3
to sell his body to a medical college^

1 People f. Woofl, 3 Parl<. fiSl (1S58).
« II. V. Bishop, 2 Loud. Leg. Obd. 39.

49(3 PRESUMPTIVE EVIDENCE. [rULE 103.

II. A. enters a house in the ni2:ht and kilH B., the owner. A.'s motive
is to possess himself of a sum of money which B. alwaj's keeps in a bag
under his pillow.

III. An old lady possessed of some money goes to board with B., who
keeps a boardiuu-house. B. kills her, B.'s motive being to possess her-
self of the goods of the old lady, she having no friends to claim them.^

IV. P. boarded with his employer, and for a long time had been gradu-
ally by fraud obtaining the control of the business. His scheme might
be frustrated by its being discovered by the employer. Here is a motive
in P. to kill his employer. 2

V. R. was a debtor of D. who held a bond and mortgage on his house.
R. was in bad circumstances. R. killed D. and seized the papers. Here
the motive is apparent.^

VI. C. poisons her father. By the death of her father, C. who is mar-
ried, falls into a large fortune. This is C.'s motive.*

VII. S. expected to inherit a large estate from his sister, a maiden
lady well on in years. Suddenly the sister formed an attachment for one
r. and told S. she intended to marry him. A quarrel ensued between
brother and sister. The latter subsequently married F., and some
months later S. killed F.^

VIII. II. is indicted for murdering his wife. That by a will of her
father II. was entitled after her death to a part of the father's estate is
relevant on the question of motive .«

IX. A. Is accused of having set fire to his own house. It is proved
that shortly before tlie fire A. had insured it far beyond its value. A
motive in A. to burn his house may be properly presumed.''

Case I. illustrates the rule that the motive of unlawful
gain is not to be judged by the amount of money to ))e had
from the commission of the crime. Here the body was
sold to the authorities of the college for less than fifty dol-
lars; and in another case, the teeth of a similar victim
were dusr out of his laws and sold to a dentist for three
dollars.

1 R. V. Burdock, Best on Pres., sect. 196.

2 R. V. I'atch, Wills Circ. Ev. 2;;0.

" State V. Robinson, I5urr. Cii'. Ev. 288. A similar motive is found in Com. v.
Webster, tried for Iho murder of Prut. Parkman, Bemis' Report, 533; R. v. Harrison,
12 How. St. Tr. 803 (1G02).

■• R. V. Blandy, 8 IIow. St. Tr. 1118 (1752) ; Margaret Gottfried's Case, 4 Leg. Obs.
101; R. V. Stansfleld, 11 IIow. St. Tr. 1371.

6 Strangwayes' Case, 5 Leg. Obs. 90.

« People V. Ilendrick.soii, 1 Park. C. C. 422 (]&53).

1 Best Ev., sect. 453; and see State v. West, 1 Iloust. Cr. Gas. 332.

RULE 103.] PRESmrPTIOXS IX DISFAVOR OF INXOCEXCE. 497

Case II. is the common one of the burprlar who, know-
ing that some money is to be had, takes the risk as to the
quantity being great or small.

Case III. is an example of those cases where the prop-
erty of another has been brought into the criminal's pos-
session, and can be held there but for the victim's presence,
and case IV. is of the same kind.

Analogous to these is case V.

In case VI. we have the motive which prompts the
remainder-man to wish the death of one Avho holds the life
estate — the case of " dead men's shoes."

Case VII. shows a motive of the same character — to
prevent an expected inheritance from being lost.

In case VIII. it was said: " The evidence was received
as bearing upon the question of motive. If it tended in
the least to show (hat the prisoner had been disappointed
in the pecuniary expectations he had entertained from his
alliance with the family in not being able to realize them
until after the death of his wife's mother, and then not in
an equal proportion with the brother; or if it tended to
show how little property he might expect from his Avife if
she lived — in either case whether the supposed motive was
resentment or avarice it was properly received. It v»-as
competent to show whether the i)risoner would gain or lose
by the death of the deceased, and to compare the small
amount expected to be realized at a distant day with the
intermediate burden of her maintenance. Taken in con-
nection with the previous testimony tending to show a want
of allection on the part of the prisoner toward his wife,
this evidence was clearly admissible. Considerable latitude
is allowed on the question of motive. Just in pro])ortion
to the depravity of the mind would a motive be trilling or
insignificant which might prompt to the commission of a
great crime. We can never say the motive was adequate to
the offense ; for human minds would differ in their ideas of
adequacy, accordmg to their own estimate of the enormity

32

498 rKESU3IPTIYE EVIDENCE. [rULE 103.

of crime and a virtuous mind would find no motive sufficient
to justify the felonious taking of human life."

B.

I. K. poisons his wife. It is proved that while his wife was alive he
made offers of marriage to one Nancy II., who objects on the irround
that he is married. He endeavors to get a divorce from his wife, but
fails. The motive is apparent. i

II. K. is married to J., who is much older than she. K. becomes
enamored of P., J.'s younger brother. K. kills J. by poisoning him.^

III. W. is indicted for the murder of his wife. Proof of an adulterous
intercourse between W. and another woman is relevant on the question
of motive.'

IV. J. is indicted for poisoning his wife. The fact that J., during the
year preceding the murder, asked Mrs. B. to permit him to visit one
of her daughters, she refusing because he was married, is admissible as
showing a motive in J. for getting rid of his wife.*

V. G., aged twenty-two, was married to a girl of the same age on
Sunday. On the next Friday she was taken sick and died the following
Monday. On the trial of G. for poisoning his wife, the facts that the
marriage was in haste and after a very brief acquaintance, that the
family of G. opposed it, and that G. still kept the society of a former
sweetheart, are relevant on the question of motive.^

VI. J. was indicted for poisoning his wife. The fact that she for
some time previous had been compelled by J. to sleep in his kitchen,
which was very open and stood apart from the house in which J. and his
children lived, is admissible as showing a motive for her death.*

VII. F. is engaged to marry a young woman. He goes to a distant
town to improve his situation, and while there his fiancee makes the
acquaintance of W., to whom she becomes engaged. On January 2d F.
receives a letter from the young woman returning his presents and
announcing that she is to be married on January lOlh. F. starts back,

1 People V. Kelser, 3 Wheel. Cr. Cas. 40 (1817) ; Margaret Gottfried's Case, 4 T.cg.
Obs. 101; Adams' Case, 11 Leg. Obs 415; People v. Grunzig, 2 Edm. Sel. Cas. 236
(1851).

2 B. V. Xairn, 19 How. St. Tr. 1296; Mrs. Adams' Case, 5 Leg. Obs. 59; Mrs.
Spooner's Case, 2 Chand. Cr. Tr. 1 ; Pierson v. People, IS Hun, 2:39 (1879).

o Slate V. Watkins,9 Conn. 47; Templeton v. People, 27 Midi. 501 (1873); St.
Louis r. State, 8 Neb. 405 (1879).

* Johnson v. State, 17 Ala. 622 (1850).

* People V. Green, 1 Park. C. C. 32 (1845).
e Johnson v. State, 17 Ala. 622 (1850).

EULE 103.] TRESUMPTIOXS I.V DISFAVOR OF IXXOCKNCE. 409

and on the inornin:? of January lOlh waylays W. and kills him. The
motive here is jealousy.^

VIII. II. is indebted to C. C. is a hard creditor and refuses his offers
of compromise. H. complains of and is exasperaled at C.'s conduct
and llnally kills him. 2

IX. S. was engaged by the agent (G.) of au esfate to manage it. S.
was subsequently removed from liis position by the agent, and the ten-
ants whom he had obtained were likewi.se evicted. S. killed G.'

X. C. is a litigant. A decree is rendered against him which ho con-
sidi rs unjust, aud for which he threatens to kill the judge. lie after-
wards goes to the judge's house and shoots him dead.*

XI. The question is whether B or some one else is the murderer of
B.'a wife. The fact that B and his wife had, one year previous to the
killing, quarrelled aud separated is relevant as showing a motive in B.

XII. O. wishes to marry. G.'s parents oppose the match. G. poisons
her par'jnts.6

t

In case I. it was said: " The motive which induces the
commission of the highest offenses and especially of the
crime of murder is always required to be ascertained. And
here we are constrained to say that in the case under consid-
eration, the motive is but too clearly found in the testimony
of Nancy II. ; to this woman the convict had made offers of
marriage and when she says that in those offers she gave him
no great encouragement we arc led to the conclusion that
his marriage to tlie deceased was the great, if net the only
objection; and experience has shown that men, unrestrained
by a sense of religious and moral obligation when placed in
this situation, have been impelled to the perpetration of the
most deadly crimes." And in a similarcase the court said -?
" The defendant was charged with the murder of his wife.
The marital relation existins: between them furuishcd a
strong presumption in favor of his innocence. In the

Com. V. Fuller, 2 Wheel. Or. Gas. 22.1 (1820).
a People v. How, 2 Wheel. Or. Gas. 223 (18'2i).

' Stewart's Case, 19 Uow. St. Tr. 179. Aud see People v. Breen, 4 Park. C. C. 3S0
(1860).

< Chi<!lie's Gnse, 9 Leg. Obs. ICfi.

6 Haalam r. Slate, 17 .\la. -1.51 (I-nIO).

« Ma'parct Guitfricil's Gase, 4 Log. Ob<>, 101 ; R. v. Blandy, 18 How. St. Tr. 1117.

' People V. lleudricksou, 1 Park. C. C. 415 (ISM).

500 PRESraiPTIVE EVIDENCE. [llULE 103.

absence of proof to the contrary, it was to be presumed that
he loved her and would protect her. It was important, there-
fore, for the prosecution, if it could, to repel this presump-
tion by proof that the defendant had disreo;arded the claims
of connubial duty. For this purpose evidence tending,
however slightly, to show an alienation ofaflection — any
thing from which a jury might infer a desire to be free
from the burden of one who was no longer the object of
regard, was competent. Suppose it could have been proved
that the defendant had said that he hated his wife and
wished to be rid of her, would any one doubt that this
might be proved to rebut the presumption that he loved
her? So any conduct or declaration evincing unkindness
or disrespect, though less decisive in their character as evi-
dence, were admissible as tending to show the state of the
defendant's feelings towards his wife."

In case rv. the ruling of the Connecticut court in State
V. Watklns was approved. " It is stated," said the court,
*' that this decision produced surprise. But the point we
have to discuss is not the same that was decided by the
Supreme Court of Connecticut. If it were it is probable
we should concur in opinion with that court, and hold also
that it was evidence of a motive for the murder of his wife.
In this case the prisoner applied to a woman for permission
to visit her daughter. There can bo no doubt about the
criminal object of his visits. He was denied the privilege
because he was a married man; there was no other objec-
tion. Now there was an object of desire, of criminal
desire, but his wife stood between him and it. This as a
motive for her destruction was clearly admissible in evi-
dence, because motives for every crime may be proved."

In case V. the jury were told: "Where a murder is
charged and the evidence is wholly circumstantial, then it
is always peculiarly proper to look at the motive. And in
all cases you will naturally seek for the motive. And
where the proof is circumstantial, and there be doubt
about the circumstances, then it becomes most important

RULE 103.] PKESUirPTIOXS IX DISFAVOR OF INNOCENCE. 501

to examine into the motive. If, however, tlie evidence of
murder by design be direct and positive, then the guilt is
established without looking further. And in all these
cases a question as to the adequacy of motive almost
always arises. It is claimed generally that the motive was
inadequate, that it is not sufficient to induce to the commis-
sion of murder. But all this must depend on the peculiar
circumstances of each case, and the peculiar character of
the accused. There is no motive which to the mind of an
honest man can be adequate to the commission of crime ;
and just in proportion as the mind is debased and immoral,
to that extent the motive may be less Avhich induces the
criminal act. Hence, there can be no one rule for all cases,
as regards adequacy of motive, it must depend on the moral
character of the person accused in each ca<e. The Avorse
it is the less the motive which will tempt to the commission
of crime. It is urged, and very plausibly on the part of
the prisoner, that the relation existing between him and the
deceased forbids the supposition that he could have mur-
dered her ; that they were just married, and had barely
entered on that important and interesting relation in life, and
that it could not be supposed under the circumstances detailed
that the prisoner could for a moment have entertained the
idea of takinjx the life of the youns: woman whom he had
so recently sworn at the altar to love, cherish and pro-
tect. This consideration has weight, and you are to con-
sider carefully this and all other circumstances favorable to
the prisoner, and to give them their full and due weight,
comparing them at the same time with the other evidence
in the case. It is urged by the i)roseeution that the pris-
oner's acquaintance with the girl he afterwards married was
of short duration ; that he had known her but a few weeks ;
that in fact he married her a week before the time ap-
pointed. And it is claimed that the marriage was not
a^^reeable to other members of his family. * * * And
it is claimed on the part of the i)rosecution that they have
proved that there was a bad feeling existing on the part of

502 PRESUMPTIVE E^aDENCE. [kULE 103.

the mother of the prisoner in regard to this marriage of her
son. » * * Now this is evidence — legitimate evidence.
Yt)u are to say to what weight it is entitled. * * * It
is urged by the prosecution, also, that this match thus hastily
and })rcmaturcly entered into did not indicate that desirable
and abiding affection which is supposed to be incompatible
Avith the feeling that induced the commission of this crime;
and that a former attachment to Miss Godfrey (the same
one that M'ent with him after his marriage, on the sleigh
ride), still lingered about the prisoner, and prompted him
in connection with his interview with his mother to the com-
mission of the act for which he is arraigned. You must
look at this question of motive and give it due weight."

In case "VI. it was said : " This was evidence tending in
no inconsiderable degree to prove that he had become tired
of his wife and hence had a motive for putting her out of
the way. It is clear that the crime of willful murder had
been committed by some one. This having been estab-
lished, and the prisoner being charged with the crime, every
ground from which a motive could arise may be proved
against him. It is not necessary to speak at present of the
weight of such a circumstance. With regard to the grounds
from which a motive may be inferred, we may remark
that the law has never limited them, and never can limit
them in number or kind, and it is immaterial whether the
motive be wealth, as if the slayer should become entitled to
an estate by reason of the death of the party slain, or to
get the party slain out of the way for any other purpose, as
to prevent him from giving evidence in a cause. No mat-
ter what the object in view, if it can form a motive for the
act it may go to the jury. On the one hand, the jury
should receive it always with caution ; but on the other it
need not be such a ground for motive as might be deemed
sufficient to induce a just and honest man to perpetrate a
hiirh crime."

On the trial of case IX., in charging the jury, the judge
said: "Very strange causes it must be confessed for the

RULE 103.] rUESUMPTIONS IX DISFAVOR OF IXNOCENXE.

503

pannel's (prisoner) conceiving a violent and even a mortal
enmity against Glcnure. And yet nothing is more c(;rtain
than that violent offense may be taken where no just or even
plausible cause for it halh been given ; an<l from the first
murder recorded in sacred history down to this now in ques-
tion often hath it happened that wicked men have hated
their brothers without a cause, that is without a reason or
just cause, though there was always an occasion or motive,
such as it wa^, for the hatred being conceived. Again it is
to be considered that occasions of offense operate differently
according to the education, temper and character of the
paity who meets with them; and we have now heard from
the evidence in this trial what a wrong way of thinking this
unfortunate pannel is possessed of, in holding it to be a
cause of mortal enmity that a man sliould be removed by
another from his farm or possession which he hath no man-
ner of title to hold or retain ; which is a prejudice or delu-
sion that in a lower degree prevails elsewhere, but seems to
be in a particular manner prevalent in the Highlands, and
was the cause of the attempt made by the Macphersons to
assassinate Glenbuckct some years ago, as well as the cause
of the horrid murder into which you are now inquiring."

Case X. occurred in Scotland in the year 1G89, the victim
beinsf Sir John Lockhart, Lord President of the Scottish
Court of Session. Instances of this kind of motive are
few, the most recent being the killing of Judge Elliott,
of the Court of Appeals of Kentucky, by a man named
Buford, who had been unsuccessful in a case before that
tribunal, three or four years ago. More fortunate than
Chislie, the murderer of the Lord President, w\as Buford.
Chislie's sentence was " that he be carried on a hurdle from
the Talbooth of Edinburgh to the ^larket Cro>s, on Wednes-
day, the 3d of April inst. (he was tried on the 31st of the
previous month), and there, between tlie hours of two and
four of the afternoon, to have his right hand cut olF alive,
and then to be hanged upon a gibbet with the pistol about
his neck with which he committed the murder. His body

504 PEESUMmVE EVIDENCE. [UULE 103.

to be hung in chains between Leith and Edinburgh ; his
right hand fixed on the west fort, and his movable goods to
be confiscated." Buford was sent to an asylum, which he
voluntarily left after a few months.

*'\Vhcn," it was said in case XI., " a crime has been com-
mitted, and circumstances point to the accused as the guilty
agent, then proof of a motive to commit the offense, though
weak and inconclusive evidence, is nevertheless admissible.
On the other hand, the total absence of all motive or reason
why the accused should do the act must always operate
strongly in his favor where the inquiry is whether the
accused perpetrated the deed, and the evidence to prove his
guilt is circumstantial only. But it must be apparent that
if a motive be evidence in such cases to be weighed by a
jury, then evidence tending to prove the existence of the
motive can not be rejected. It may, however, be well to
remark that a jury can not be too cautious in attaching
importance to such evidence, for if the motive itself is a
weak and inconclusive circumstance, how much less con-
clusive is the evidence which only tends to prove the exist-
ence of the motive? Such evidence, however, can not be
wholly rejected ; it must go to the jury, but they should
be guarded as to the importance they attach to it. The
testimony objected to shows that the prisoner and the
deceased had lived together as husband and wife, but about
a year before the homicide had quarreled and separated,
and there was no proof to show that their relations had
been restored or that a reconciliation between them had
ever taken place. The evidence, therefore, tended to prove
a state of ill feeling or hatred from which not unfrequently
springs the spirit of revenge for either fancied or real
wrongs. Had there been no other circumstances imi)Ii-
cating the accused as the guilty agent, such proof could
have had no lefjitiraate influence and might well have been
rejected. But as other circumstances did exist pointing to
the prisoner as the perpetrator of the crime, the court vio-
lated no rule of law in admitting it to the jury. It is

RULE 103.] rilESUMPTIOXS IX DISFAVOIl OF INNOCE^•CE. 505

however, urged that if the two quarrel, and subsequently
arc reconciled to each other, the law will not presume
that malice exists between them. This is true, and the law
probably M'ould not have presumed malice or even ill
feeling between the prisoner and the deceased from their
former relations and their quarrel and separation. But
there is a wide difference between the presumptions of law
and the presumptions of fact. The law draws no pre-
sumption or inference but from facts which, unexplained,
arc conclusive of guilt. But presumptions of fact arc to
be drawn by the iury, and every fact that tends to i)rove
the guilt or to prove any fact that is evidence of guilt,
however conclusive such fact may be, is admissible evi-
dence. The prisoner could have destroyed the entire
weight of this evidence by proving that subsequent to his
qunrrel and separation from the deceased a reconciliation
had taken place, if indeed such had been the case. This,
however, he did not attempt to do."

C.

I. U. is a clergyman, who while in another and former parish, had
seduced a girl and got her with child. One day this girl appears ui K.'s
house, demands money, and threatens to expose him. R. takes her to
his room and cuts her throat with a razor. ^

II. C. is indicted for the murder of II. The fact that C. had previously
employed H. to murder one P., shows a motive for the crime aud is rele-
vant.2

III. D. is indicted for the murder of W. The fact that D. had previ-
ously been implicated in the murder of E. and tliat W. was at the time
of his death endeavoring to discover the murderers of E. is relevant as
showing a motive.'

IV. T. is indicted for the mnrder of W., a female. The fact that T.
had previously maintained criminal relations with \V. is relevant on the
question of motive.*

1 Kicmbauer'8 Case, 3 Leg. Obs. 242. Aud see R. v. Richardson, Burr. Cir. Ev.
243.

« Rex f. Clcves, 4 C. & P. 221 (IKO).
s Dunn v. State, 2 Aik. 227 (ISo'.i).
* Turner v. Com., «6 Pa. St. 64 (1878).

506 PRESUMPTIVE EVIDENCE. [rULE 104.

V. The question is whether M. is the murderer of R. The fact that
R. and ]M. were under indictment together for larceu}' and that R. liad
turned State's evidence before the murder, is relevant as showing a
motive in JM. to kill R.^

VI. S. is indicted for the murder of L. who was married to S.'s sister.
The fact that S. and his sister had been guilty of incest which was known
to L. shows a motive and is relevant.^

RULE 104. — Proof of opportuiiitj' possessed by the ac-
cused to commit the crime may i*aise an inference
that he is the criminal ( A ) . But another may have
had a better opportunity than even the accused ; and
the possibility of such a circumstance should weaken
the presumption (B).

Illustrations.

A.

I. A. is indicted for poisoning B. The fact that A.. lives in the same
house with B., and had opportunities for tampering with his food and
drink is relevant. ^

II. T. is indicted for entering U.'s room in the night and stealing his
moucj-. The fact that T. is a lodger in the same house is relevant as
showing an opportunity.*

III. S. is found dead in a house. R. is seen coming out of the house
with a bloody sword in his hand. The presumption is that R. has killed
S. This is the violent presumption of Sir Edward Coke.*

IV. II. is indicted for the murder and robbery of A. It is proved
that some months before H. said to a witness: "Don't you reckon that
if any one was to run in on old man A. he would get a handful of money."
This declaration is relevant as showing opportunity and knowledge.*

B.

I. One Sunday morning when the whole of a household except T.,
a female servant, was absent at church, the house was robbed, and a
small cabinet containing jewels and gold coin to a very large amount

1 State v. Morris, 84 N. C. 756 (1881).

2 People V. Stout, 4 Park. 71 (1858).
a IJiirr. Ev. 356.

* Jd. .",57.

6 Coke Lilt. 66.

» State V. Uoward, 82 N. C. 627 (1880).

RULE 105.] RESUMPTIONS INT DISFAVOK OF INNOCENCE. 507

taken and carried awaj'. T. maintained tliat no one had entered or gone
oiiL of the house during the time of the family's absence. T. was con-
victed of the robbery Many years after as T. having served out her sen-
tence was going through the niarl<et a butcher tapped lier on tlie shoulder
and said in a half whisper and an ironical tone of voice: "Ah! what a
creature is a naked woman." T. remembering that she had made
that remark to herself on the morning of the robbery, the butcher
was arrested. He confessed that his master served the hou^e with
meat, and having forgotten to take some minced veal home on Sat-
urday evening as he should have done, he carried it in a hirge basket on
Sunday morning. The family had gone to church; T. was upstairs, and
setting the meat in the usual place, he pretended to go directly out, and
to shut the door after him, instead of which he shut himself in and pull-
ing off his shoes crept softly up to the garret waiting for T. to come up
to her room. T. presently came up to change her clothes, and uncon-
scious that any human being was near her, being entirelj' undressed and
contemplating her naked figure uttered the exclamation above, which
being plainly overheard by the butcher, he immediately went through
the house and took what he wanted, escaping by the back door before T.
was through her toilet. ^

II. A female servant was charged with having murdered her mistress.
No persons were in the house but the deceased and the prisoner and the
doors and windows were closed and secured as usual. The presumption
being that no one else could have had access to the house, the prisoner
was convicted and executed. It afterwards appeared by the confession of
cue of the real murderers that they had gained admittance into the htmse
which was situated in a narrow street by means of a board thrust across
the street from an upper window of an opposite house, to an upper win-
dow of that in which the deceased lived; and that having committed the
murder they retreated the same way leaving no traces behind them. 2

RULE 105. — Proof of a former attempt by the accnsed
to perpetrate the same crime in the same or in a
different manner raises an inference of his guilt as
to the latter crime.

Illustrations.

I. A. is indicted for poisoning his wife by giving hor laudanum. The
fact that A. had on a former occasion given her laudanum, which made
her sick, is relevant.'

1 Taantje's Case, Phill. Circ. Ev. XXXTTII,

' r.est Ev., sec. 4.5.'5.

3 Johnson v. State, 17 Ala. 622 (1S50).

508 PRESUMrTIVE EVIDENCE. [rULE 106.

II. A. is charged ^vith setting fire to his house in order to obtain the
insurance money. The fact that A. had previously set fire to his house,
or that fire had previously occurred there, is relevant. ^

III. Z. is charged with poisoning A., her husband. The fact that Z.
had previously put poison in the food of the family is relevant.-

IV. V. is indicted for shooting at P. with intent to kill him. Proof
that V. at a previous time had shot at P. is relevant.^

V. D. is charged with having willfully set fire to a hay stack. The
fact that on a previous day the rick was seen to be on fire, and D. to be
near it, is relevant.*

In cnse I. it was said: " If his former attempt to poison
his wife had been proved by a witness on the trial, the
question of the admissibility of the evidence would have
been dilferent. It might then have been very material to
inquire whether he gave her the poison for which she is
indicted innocently or criminally. It is very usual for the
head of a family to administer medicine in the domestic
circle, but in doing so, if he should poison the patient, his
intention would be very material. In such case it would
deserve consideration if a former attempt to poison the
patient might not be proved, although of itself a distinct
felony, for the purpose of showing his guilty knowledge in
the last instance."

RULE 106. — Proof of preparations on the part of the
accused to accomplish the crime charged, (A) or
to prevent its discovery, (B) or to aid his escape, (C) or
to avert suspicion from himself, <D) raises a presump-
tion of his guilt.

Illustrations.
A.

I. A. is accused of the murder of B. by poison; C. of the murder of
D. by shooting; E. of committing a burglary; E. of arson; G. of coun-
terfeiting. The fact that A. had previously purchased some poison; that

1 Keg. V. Gray. 4 F. & F. 1102.

s 11. V. Gearing, 13 h. J. (M. 0.) 215; Mrs. Ardcn's Case, 5 Leg. Obs. 50.

3 U. V. Voke, li. & II. 5n (IS23).

* K. V. Dorsett, 2 C. & K. 306.

RULE lOG.] PRESUMFTIONS IX DISFAVOR OF INNOCENCE. 509

C. had bought, borrowed, or stolen a Rim or pistol; that E. had pro-
cured an ax, a picklock, or a dark lantern; that F. had procured a
quantity of turpentine; that G. had made an instrninent to nianufaciure
coin, are relevant and raise an inference of fact of guilt in each case.*

II. K. Is accused of the murder of A. by stabbing him. The fact that
K. had i)revii)usly taken a sword to a cutter, telling liiui tliat he wanted
it ground "as sharp as a carving knife," as he wished to use it as a
carving knife, is relevant. ^

III. F. is accused of the murder of W. by shooting him with a pistol.
The fact that F., a few days prior, had procured a pistol and had spent
some time practicing at a mark is relevant.*

IV. S. was indicted for murdering R. by shooting. The fact that a
day or two previous S. had borrowed a gun from a friend, stating that
he wanted it to kill deer with, is relevant.*

I. An inn-keeper and his wife are accused of the murder of a guest.
It is shown that the night the murder was committed they sent the maid-
servant out of the house, and when she returned made her sleep in
another part of the building. This is relevant.'

C.

I. A. was charged with the murder of T. The fact that the day before
the murder A. had drawn a quantity of money from a bank in which he
had it on deposit, is relevant, as raising an inference that he was pre-
paring to escape, if necessary, from the country.*^

D.

I. B. and P. lived in the same house, and the former, while sitting
one evening in his parlor, was shot by a pistol in an unseen hand. A
few evenings before, and while B. was away from home, a loaded gun or
pistol had been discharged into the room in which the family when at
home usually sat and passed their evenings. This shot, P. claimed at
the time, had been llred at him, but it turned out to have been lired by
him.'

1 SCO cases passim. R. v. Ilill, 20 IIow. St. Tr. 1317; People i*. Peverelly, Burr.
Ev. 3^17.

s U. V. Corder, Phill. Tr. 2'21.

» Com. V. Fuller, 2 Wheel. 2-2:5 (1820) ; R. v. Barbot, 18 How. St. Tr. 1261 (1753).

* Strangcway's Case, 5 Leg. Obs. 91.

» Dray no's Case, 5 Leg. Obs. 123 (1C..")4) ; Ferrer's Case, 19 How. St. Tr. 904.

« Adams' Case, 11 Leg. Obs. 415 (18U5),

' Patch's Case, Loudou, 1S06.

510 PRESOIPTIVE EVIDENCE. [rULE 106.

II. A. is accused of the murder of B. It is proved that A., some time
previous, ha I spread a rumor that ou account of ill-health B. would not
be likely to live very long.i

III. S. was charged with the murder of T. On the night of the murder
S. left a friend at his lodgings, getting him there secretly, so that the
people of the house would think S. at home when he was absent. This
is relevant.2

In case I., P.'s object in representinr; that the first shot
was fired by himself was to induce B., the servants, and
the officers of the law, who would subsequently be called
on to investigate the crime, to believe that assassins were
prowling around the buildino;, and to lay upon them the
guilt of the killing of B.

The object of such statements, as in case II., is to pre-
pare the minds of the friends and neighbors of the deceased
for the event, and by diminishing surprise to prevent investi-
gation into its cause.

Sub-Rule 1. — But Rule 106 does not apply where the
preparations may have been innocent (A) or for the
execution of something different tliough illegal, (B) or
where the crime for the execution of ^vliich the pre-
parations were made may have been subsequently frus-
trated or voluntarily abandoned (C).

Illustrations.
A.

I. A. is indicted for murdering B. by poisoning him. It appears that
shortly before, A. purchased a quantity of poison. This raises an infer-
ence of guilt. But it appears that A. had purchas'd the poison for no
other reason than to kill vermin. This overthrows the inference of
guilt.'

IT. A. is accused of the murder of B. It is proved that A. sometime
previous had spread a rumor that on account of ill health B. would not
be likely to live long. It turns out that A. was really speaking the con-
viction of his own mind. This destroys any inference of guilt.*

Best Ev., sec. 4.55.
s Stran.^eway's Case, 5 Leg. Obs. 91.
a r.e-t Ev., sec. 456.
* Supra.

EULE 107,] PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 511

B.

I. A. is found killed by a bullet from a Kun. It is proved lliat B., a
neijj;hbor, had pureliased a gun the day before, and another neifihbor C,
is found Willi a gun in his possession. The facts tli.it B. hail pureliased
the gun for the i)urpose of poacliin-j; or that C. had stolen the gun to go
hunting with, explain the circumstances.^

c.

I. A. prepares poison with which to kill D. Before he uses it he
repents of his crime, and abandons the idea of killing 1). This over-
throws the inference arising from the purchase of the poison. ^

II. B. was an inn-keeper. One night one H. put up at B.'s inn having,
before he retired to bed, remarked that he was carrying with liim a large
sum of money. Two guests in an adjoining room were wakened in the
middle of the night by groans and rushing into II. 's room found II. wel-
tering in blood and a man standing over him with a dark lantern in one
hand and a knife in the other. On being seized the man turned out to be
B., and he was tried and executed, though maintaining his innocence to
tlie last. Afterwards it was established that the murder had been com-
mitted by H.'s servant, who had left the room but a few seconds before
B. entered it for the same purpose.'

RULE 107. — Threats or expressions of ill will on the
part of the accused concerning the victim are relevant
on the question of his g^uilt.

Illustrations.

I. W. Is charged with the murder of A. The fact that W. had been
heard to say of A. that he " is a cursed villain and the greatest enemy I
Lave," is relevant.*

II. A son is accused of murdering his father. He has been heard to
declare that " he hated his father these six or seven years." This is rele-
vant.*

III. A woman and her paramour were accused of murdering her hus-
band. She had been hcanl to say of her husband that " she lived a most
unhappy life with him and she wished him dead, or if that coulJ not be
she wished herself dead." This is relevant.^

IV. 11. is accused of murdering J. The fact that before the murder

1 Best Ev., eec. 45G.

« Best Ev. 457.

» Bradford's Case, Phillips' C.is. on Circumstaatial Evidence, XX\'I.

* People V. How, 2 Wliocl. 415.

6 R. I'. Stand>fleld, 11 How. .^t Tr. 1397.

« li. f. Ogilvic, 10 How. St. Tr. UOO.

512 PRESUMPTIVE EVIDENCE. [eULE 107.

n. was heard to say of J. : •* He deserves to have his throat cut " is rele-
vant. ^

V. J. is indicted for the murder of W. The fact that J. sometime
previous had said that he intended to "lay for W. if he froze the next
Saturday night," is relevant. ^

VI. H. is charged -with the murder of M. H. has been heard to say
of JI. : "If he don't do as he has agreed I will kill him." This is rele-
vant.^

YII. A woman was charged with the murder of her husband. She
had previously expressed her hatred of him and said: " If she had a dose
she would give it to him." This is relevant *

VIII. S. was found dead in a well. It is proved that some time pre-
vious T. had said that he would put S. " in the well for two coppers."
This is relevant on the trial of T. for the murder of S.^

IX. R. is indicted for the murder of S. Before the murder R. was
heard to say of S. : "I will kick hell out of her. I will break her damned
neck." This is relevant.^

In case IX. it was said : '* Threats are significant. Out
of the abundance of the heart the mouth speaketh. Threats
unexecuted amount to nothing, but when the thing threat-
ened is done, and is done as it was threatened, then the fact
of the threat becomes an article of circumstantial evidence
tending to inculpate the person threatening. ' I will break
her damned neck.' The dislocated neck of the victim of
wrath and violence, her beaten and bruised body, show that
what was threatened was done. The question is was it
done by the prisoner who thus threatened, or by some one
else from whose lips no threats proceeded."

Sub-Rule 1. — But threat!^, though made hy the occuKed,
are no evidence of his guilt .where a person other than
himself may have carried them out.

Illustrations.
I. A woman of bad character one day in the open street threatened a
man who had provoked her in some way that he "would get his hams

1 n. V. Harrison, 12 How. St. Tr. 841.

s Jim V. Slate, 5 llumiili. 146 (1844) ; Respublica v. Bob, 4 Dall. 145 (1794).

2 People V. How, 2 Wheel Cr. Cas. 412.
* R. V. Ogilvie, 19 IIovv. St. Tr. 1273.

6 Mrs. Spooner's Case, 2 Chand. Or. Tr. 14.
8 State V. lieed, 62 Mc. 130 (1874).

RULE 108.] rilE^U.MrriONS IX DISFAVOR OF IXNOCEN'CE. 513

cut across for him before long." A short time afterwards this man was
found dead with liis hams cut across. The inference was tliat tlie woman
had killed him, and slie was convicted and executed. Afterwards the
true murderer confessed the crime — an enemy of the victim who hap-
pening to hear the threat uttered as he was passing along the street,
took advantage of the circumstance to carry out his revenge in the man-
ner described by the woman, well assured that the woman's bad char-
acter would immediately direct towards her the attention of the officers
of justice.^

11. A landlord's life is threatened by exasperated tenants and debtors
The landlord is subsequently murdered by a debtor who has made no
open threats .2

RULE 108. — Possession by the accused of tlie moans
for committingr the crime charged raises a presump-
tion of his guilt (A.) And tliis presumption may be
strengthoned or weakened according to the occupa-
tion, cliaracter or sex of the accused. (B.)

Illustrations .
A.

I. A. is indicted for counterfeiting. The fact that instruments
Intended for the making of spurious coin are found in A.'s possession
raises an inference of bis guilt.'

II. A. is indicted for coining. The fact that in A.'s house are found
Instruments fitted for coining raises a presumption of guilt.*

III. B. is indicted for poisoning C. The fact that a quantity of the
same powder which was ft)und in the stomach of C. was also found in
the possession of B. is relevant.*

IV. A. is indicted for the murder of B. The possession by B. after
the crime of the instrument with which the deed was committed raises
an inference of guilt.*

In case I. it was said : " "When tlic criminal law writers
say that you shall not give in evidence the stealing of one

1 Best Ev., sec. 453, note.

2 Tliis was the fail, in the celebrated case of the killing of Parkman by Trof.
Webster. Best Kv. (Morg. ed.), sec. i:>S, ncte.

8 state f. Ar.t()nio,2 C()n>,t. (S. C.) TTGclSlC).

* Wuiphy'3 Case, -1 City Hall llec. 42; Comuionweallh f. Willlauis, 2 Gush. 5S2.
» Burr. Ev. CC,'?.

• E. V. Thurtcll, Phil. Tr. 7.

83

514 PUESmiPTIYE EVIDENCE. [rULE 108.

article upon an indictment for stealing another, the reason
is obvious: because the articles being separate and distinct
in their nature and the subject of different felonies, the
party, though innocent, might be convicted ; for he would
not be prepared to defend himself against the larceny of
any other article than that specified in the indictment.
The rule of law in larceny is, that if an article which has
been stolen be found in the possession of one who will not
or can not account for the possession, that he shall be
adjudged to be the thief. But it is contradictory to com-
mon sense as well as common justice to apply a rule where
a man had not had an opportunity of accounting for the
possession. But when a man is charged with coining and
passing coin, can there be a more direct mode of proving
his guilt than by producing the instrument with which the
coin was made? Would it operate as a surprise? Surely
the connection between the offense and the instrument is
such that the accused would naturally be prepared to
account for the possession of the latter when he came
prepared to defend himself against the former." And
Bay, J., added: "The court admitted that one felony
could not be given in evidence to support another ; as, for
instance, the stealing of a horse could not be given in evi-
dence to prove a man guilty of stealing a negro, because
they are separate and independent offenses, both suscept-
ible of external proof. But when a scienter was to be
proved it must be drawn from circumstances. This spe-
cies of evidence lies deep in the human heart beyond the
reach of mortal ken. To find out this knowledge, there-
fore, is always a difficult research, and it must be drawn
from circumstances indicative of the operations of the
mind, and at last a reasonable presumption is all that can
be obtained or acquired; all the legislators and lawyers on
earth can go no further. It was, therefore, under these
impressions that the court permitted these forging instru-
ments found in the prisoner's possession to be given in
evidence to the jury, not, as has been stated, to prove the

RULE 109.] niESUMPTIONS IN DISFAVOR OF INNOCENCE. 515

offense of passing the counterfeit money, but as a circum-
stanco to show that he must have had a knowledge of the
baseness of the metal of which the false dollar was com-
posed. And unless circumstances of this kind or those
of a similar nature were permitted to be given in evidence
to a jury, all that class of cases or offenses where a knowl-
edge of the falsehood, of any kind or nature whatever,
forms or constitutes the principal ingredient of the offense,
must fall to the ground, and the means of punishment
must become useless and inoperative."

B.

I. A. is Indicted for burglarj'. In A.'s possession are found a number
of keys, of moulds for making keys, and of picklocks. This raises an
inference of guilt. But it is proved that A. is a locksmith. This will,
as a rule, overcome this inference. ^

II. Both B. and D. are su-sipccted of having poisoned C. In the pos-
session of both, poison is found. B. is a physician D. is a woman.
The inference of guilt from possession of means is very strong as to D.
and very weak as to B.^

III. F. and G. are indicted for having counterfeit money in their pos-
session with intent to pass it. A counterfeit bill is found in F.'s safe
and in G.'s pocket. F. is a respect'ble merchant who lias never been
charged or suspected before of such a crime. G. is a black-leg who
belongs to a gang of criminals. The inference of guilt is very strong in
the case of G. and very weak in the case of F.*

IV. A woman being suspected of killinij a man by cutting his throat,
her house is searched and a razor found in her possession. This raises
an inference of guilt.*

RULiE 109. — The possession by the accused of the fruits
of the crime raises a presumptiou of his gxiilt.

Illustrations.
I. M. is indicted for the murder of a woman. 'When arrested, prop-

1 Burr. Ev. 364.

* Id.
» Id.

* Id., U. V. Ueath, WiUs' Ev.

516 PRESUMPTIVE EVIDEXCE. [rULE 109.

erty belonging to the woman, such as dress and jewelry, is found in his
possession. This raises an inference of his guilt. ^

II. A jewelry store is broken into at night and a number of watches
stolen. A month later one of the watches is found in the possession of
K., who had worked for the watchmaker and was familiar with the prem-
ises. This makes a, prima facie case against K. for the burglary .2

III. B. is indicted for the murder of C. In the possession of B. after
the crime, are found C.'s watch, his purse, keys and papers, also some of
his clothing. This raises an inference of guilt.'

In case I. it was said: "Appellant contends that there is
not sufficient proof to sustain the verdict ; that the whole
amount of proof is that the defendant was found in pos-
session of some of the property of the deceased. We view
the proof in a different light. He was found in the posses-
sion of a large amount of the property of the deceased, and
of that property which she had only a few hours before her
death; not only in possession of an amount of her prop-
erty which he could not well have obtained honestly, but
he is shown to have made false statements in regard to it.
At least if the statements were true, he. could easily have
proved some of them to be so, which he neither did nor
attempted to do. He made statements in regard to the
dresses and jewelry having belonged to his wife who he
said was dead. Yet on the trial he made no attempt to
show he ever had a wife nor any attempt to find the woman
who had, according to his story, sent a dress pattern by
him for sale. When he sold the diamonds, instead of sell-
ing them in their settings, he took them out of the gold
setting and sold them separately. This was not the con-
duct of an innocent man. The possession of property
recently stolen or taken from the owner by the perpetra-
tion of other felony, such as burglary or robbery, etc., is
at least some evidence against the person having possession

1 state V. Millain.S Nev. 409 (1867).

• Kuickcrbocker v. People, 43 N. Y. 177 (1870); Davis v. People, 1 Park. C. C.447
(1853).

» Cicely t>. State, 13 S. & M. 220 (1349) ; Drayne's Case, 5 Leg. Obs. 124; Eiem-
hauer's Case, 3 Id. 243.

nuLE 100.] rRESUMmoNS in disfavor of ixxocenxe. 517

of the same that he is the felon. If the property is such
in character or quantity as would not bo likely to come
honestly into the hands of the person with whom it may 1)0
found, as ladies' drosses, jewelry, etc., in the hands of a
single man not engaged in the trade or pawiibrokiiig busi-
ness, this would greatly strengthen the evidence. If such
articles were found in large quantity, beyond the apparent
means of the party to acquire honestly, this would still
further increase the strength of the evidence. If the party
should in addition to all these things tell lies about the
property and attempt to dispose of it under false pretenses
and representations, this evidence would seem conclusive
beyond all reasonable doubt."

In case II. it was said: *' It seems almost impossible to
escape the conclusion that if possession be evidence of the
larceny, it is also evidence of the burglary. JMere posses-
sion of another's property proves nothing, until it is shown
how it was taken. If the taking was a mere trespass it is
impossible to make the possession evidence of anvthinf>-
more or less than the trespass. If a larceny, then it is evi-
dence of the larceny. Here it is entirely clear that the
only taking proved was a burglarious taking, a burglarious
larceny and no other. The recent possession thereafter of
the property thus taken is evidence that the possessor bur-
glariously took it ; is evidence of that crime, as no other
crime except a burglarious larceny is proved. It proves
that crime or it proves nothing. Upon such proof you
might as well say that it proved a trespass simply as to say
it proved only a larceny. The answer to each is that no
such offense is proved. The only oHenso proved being a
burglarious larceny — a burglarious taking — recent pos-
fession thereafter i)roves the prisoner guilty of that offonse
if it proves anything, as no other offense or takin"- is
proved. Strike out the i)roof of the burglary in this case,
and the prisoner is proved guilty of no crime. Insert
it, and possession proves him guilty of that crime, if
of any:"

518 PRESUMPTIVE EVIDENCE. [iJULE 109.

Sub-Rule 1. — In prosecniions for larceny or robbery, the
recent possession of the stolen property raises the pre--
sumption that the possessor is the thief}

Illustrations.

I. W. is indicted for stealing a pair of slioes from M. From the shoes
being found in W.'s possession shortly after they were stolen, the pre-
sumption arises that W. was the thief .^

II. A silk dress and a shawl are stolen from a house, and afterwards
found in the possession of a man and concealed in his hat. He states
that he found them. The presumption is that he stole them.^

III. A number of sheep were stolen from C. on the afternoon of a cer-
tain day. The same evening the sheep are found in the possession of
M. The presumption is that M. is the thief.*

IV. A number of skins are stolen in Kansas. Shortly after they are
fouud in the possession of C. in Missouri. This raises a presumption
thatC. stole them.^

V. On Thursday night B. put his ox in the stable and locked it. In
the night the door was broken and the ox stolen. On the following Fri-
day T. was found in possession of the ox and driving it along the road.
This raises the presumption that T. stole it.^

1 Price V. Com., 21 Gratt. 146 (1872) ; State v. ■VVikoff, 15 Mo. 174 (1851). And see
illustrations 7)cis<. In a few States it is held that from recent jiossession alone no
presumption of guilt can arise, and that this unaccompanied by other facts will not
■warrant a conviction. Coiikwright v. People, 35 111. 204 ^ People v. Chambers, 18 Cal.
382; People v. Ak Ki,20 Cal. 172; People v. Antonio, 27 Cal. 404; State v. Hodge, 50
N. II. 510 (1869). Tlie possession must likewise be exclusive. State v. Smith, 2
Ired. (L.) 407 (1842) ; State v. Graves, 72 N. C. 4S4 (1875).

2 State V. Williams, .54 Mo. 170 (187,'?). And see Pennsylvania v. Myers, Add. .320;
State 17. Gray, 37 Mo. 4C3 (1866) ; State v. P.ruin, 34 Mo. 540 (1864) ; State v. Williams,
9 Ired. (L.) 140; State v. Brewster, 7 Vt. 122 (1835); Hughes v. State, 8 Humph. 75
(1847); Slate V. Weston, 9 Conn. 527 (18,33); Fuller r. State 48 Ala. 273 (1872); Unger
V. State, 43 Miss. 642 (1860) ; Atzroth v. State, 10 Fla. 207 (1800) ; Wise v. State, 24 Ga.
31 (18.')8) ; Mondragon v. State, 33 Tex. 480 (1870) ; Com. v. Millard, 1 Mass. 6 (1804) ;
Simpson v. State, 4 Ilumjih. 450 ; Sneathers v. State, 4G Ind. 447 ; Tuberville v. State,
42 Ind. 490; Jones v. State, 49 Ind. 549; Hall v. State, 8 Ind 439; Comfort v. People,
54 111. 404; People v. Wilson, 30 Mich. 486; State v. Bennett, 3 Brcv. 514 (1815) ; Curtis
V. State, 6 Cold. 11 (18GS) ; R.v. Smith, Ry. & M. 295 (1S25) ; State v. Adams, 1 Ilayw.
(N.C.)463 (1797). Waters r. People, 104 111.545 (1882); Stokes r. Stale, 58 Miss. 677
(1881) ; State v. Brown, 75 Mo. 317 (1882) ; State v. liulterfield, 75 l\Io. 297 (1882) ; State
V. Crank, 75 Mo. 406 (1882) ; People v. Hurley, 60 Cal. 76 (1882) ; Tucker v. State, 57
Ga. 503 (1876). From finding part of stolen pro))erty in a person's possession the i)re-
eumption is that he stole the whole of it. Thompson v. People, 4 Neb. 528 (1876);
Thompson?;. State, 6 Neb. 102 (1877).

8 People V. Preston, 1 Wheel. 41 (1822).
* State V. Merrick, 19 Mo. 398 (1.S41).
6 State V. Cassidy, 12 Kas. ."j.^O (1874).
« Stale V. Turner, 65 N. C. 593 (1871).

RULE 109.] PRESUMPTIONS IN DISFAVOPw OF INNOCENCE. 5

19

VI. A horse is stolen from C. On the same day C. is discovered
rldiii;,' him. This raises a presumptiou that C. is the tliief. This is Luid
Hale's illustration.

The reasons on which this presumption is founded are
well stated in a learned note to the report of Cochin'' h Case.'^
♦'As a general proposition where a person is in possession of
property it is reasonable to suppose that he is able to f^jive
an account of how he came by it, and when the property in
question has belonged to another, it is in general not unrea-
sonable to call upon him to do so. If the change of posses-
sion has been recent he will not be likely to have forgotten,
still less if it be an article of bulk or value. If, then, it be
reasonable under such circumstances to call upon the party in
possession to account for such possession, it can not be un-
reasonable to presume against the lawfulness of that posses-
sion when he is unwilling to give an account, or is unable to
give a probable reason why he can not. Now, there is no
reason in general why an honest person should be unwilling,
and therefore the law presumes that such person is not honest
and that he is the thief. The property must have been
taken by some one. He is in possession and might have
taken it, and he refuses to give such information upon the
matter as an honest man ought."

" There was no error in the instruction," said the court
in case I., *' that the recent possession of stolen property is
presumptive evidence of the guilt of the possessor. Such
possession, unless explained, either by direct evidence or
attending circumstances or the character and habits of the
party with whom the property is found, or by some other
mode equally satisfactory as to the innocence of the
accused, will be taken as conclusive."

In case III. it was said: " In pro.secutions for larceny,
where the goods are proved to have been stolen, it is a rule
of law ai)i)licable to these cases that possession by the
accused soon after they were stolen, raises a reasonable pre-

1 2 TTalo Ploas of the Crown, 289.
« 2Le\viu, 2>U (ISJG).

520 PRESUMPTIVE EVIDENCE. [llULE 109.

sumption of his guilt, and unless he can account for that
possession consistently with his innocence, will justify his
conviction. Evidence of this nature is by no means con-
clusive and it is stronger or weaker as the possession is more
or less recent. Such evidence is sufficient to make out a
prima facie case on the part of the government, proper to
be left to the jury. In the absence of all opposing testi-
mony, prima facie evidence in civil cases becomes conclu-
sive and can not be disregarded without calling for
correction on the part of the court. "When by opposing
testimony reasonable doubt is thrown upon a prima facie
case of guilt it can no longer be said that the party accused
is proved guilty beyond a reasonable doubt. The jury are
to judge upon the effect of the testimony taken together.
It was, in our judgment, too strong to instruct the jury that
they must convict the accused unless he had proved to their
reasonable satisfaction that he came by the sheep otherwise
than by stealing. Proof of good character may sometimes
be the only mode by which an innocent man can repel the
presumption of guilt arising from the recent possession of
stolen goods. As for instance, where the party really
guilty, to avoid detection, thrusts unobserved in a crowd the
article stolen into the pocket of another man. This may
be done, and the innocent party be unconscious of it at the
time. And yet good character is not proof of innocence
although it may be sufficient to raise a reasonable doubt of
guilt. The case linds that the defendant did adduce evi-
dence tending to prove that he bought the sheep of a
stranger. It may be easily conceived that this proof may
have been strong enough to create in the minds of the jury
a reasonable doubt of his guilt; and yet fall short of estab-
lishing the fact beyond a reasonable doubt that he did so
purchase them. In such a case, the instruction required a
conviction, although everyone of the jury might entertain
reasonable doubts of his guilt."

In case IV., after referring to the cases in which it is held
that recent iDossession of stolen goods alone is not sufficient

RULE 109.] rRESlTMlTIONS IN DISFAVOR OF INNOCENCE. 521

to wan-ant conviction, the court said : " Still the overwhflm-
inor wci'T-ht of authority is with the rule as stated; and as
fairly and reasonably interpreted we think it ought to stand.
It is not the statement of an absolute and conc-lusivc legal
presumption. It is a presumption which is strong or weak
accordingto the nature of the property stolen, the lime and
place of the larceny, the time wltiiin which the possession is
shown, the manner of holding and the various other condi-
tions which, ai)pearing in any other case, give occasion for
the application of the rule. For it must be remembered
that a jury never passes upon this as an abstract question
isolated from facts and persons. A larceny must always be
proved before there can be any presumption as to who is
the thief. Now, when the larceny is proved, the possession
may be shown so recently, so almost instantaneously there-
after, as to render it morally certain that the possessor was
the thief. To declare otherwise would be to ignore all
those facts of human experience and conditions of human
action which support the rules of evidence. To instruct a
jury that such a recent possession was insufficient to call
upon the defendant for an explanation, and unexplained, to
warrant a conviction, would insult the intelligence of every
juror. As the time between the larceny and the possession
is enlarged, the necessity of additional evidence appears,
and in some cases the fact of possession may be but a slight
circumstance indicative of guilt. There may, of course, be
cases where the possession is so long after the larceny that
the court ought to instruct the jury that something more
than possession must be shown to justify a conviction, but
as there may be cases where that possession is so recent as
to warrant a verdict of guilty, the court can not, in the
absence of a full statement of the facts, say that the District
Court erred in refusing to instruct the jury contrary to the
ancient rule. Whatever suggestions or qualifications may
be appro})riate, many cases will depend u[)on the peculiar
facts of the case."

In case V. it was said: "Where a person is found in

522 PRESUMPTIVE EVIDENCE. [rDLE 109'

possession of goods, which have recently been stolen, there
is a presumption of law that he is guilty of the theft, and it
is not necessary for the State to show any other sus-
picious circumstance accompanying such possession. This
presumption may be rebutted by the defendant, but if he
does not satisfactorily account for such possession by show-
ing that he received the goods honestly, a jury ought to
convict him of larceny."

Sub-Rule 2. — But a reasonable explanation by the accused
of Ills possession overthrows the presumption, and casts
the burden on the prosecution (A) ; provided the explana-
tion is not inconsistent with the identity of the prop-
erty (B).

Illustratiofis.

I. C. is indicted for stealing a piece of wood, the property of H. It is
found in the possession of C, Ave da.vs after it was taken from C.'s. On
the trial C. states that he bought it from a neighbor. This is a reason-
able explanation, and overthrows the presumption. C. must be acquitted
unless the prosecution produce the neighbor and contradict C.^

In case I., it was said: " In cases of this nature, you
should take it as a general principle that where a man in
whose possession stolen property is found gives a reasona-
ble account of how he came by it, as by telling the name of
the person from whom he received it, and who is known to
be a real person, it is incumbent on the prosecutor to show
that that account is false ; but if the account given by the
prisoner is unreasonable or improbable on the face of it,
the onus of proving its truth lies on him. Suppose, for
instance, a person were to charge me with stealing this
watch, and I were to say, I bought it from a particular
tradesman, whom I name, that is prima facie, a reasonable
account, and I ought not to be convicted of felony, unless
it is shown that that account is a false one."

1 R. V. Crowhurst. 1 C. & K. 370 (1844) ; E. v. Smith, 2 C. & K. 206 il845).

RULE 109.] PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 523

B.

I. A beetle head is stolen from the house of W. Fifteen months
thcnafter it is found in E.'s house aud ideutlflod by W. as his. E. is
called on to explain his possession. If E. says, " I can not remeniber
where I got it," this will bo sufficient and he must be acquitted. But if
E. says, " I bou<;ht this beetle at a sale el^ht years ago," this contradicts
the identity, which remains a question on which E.'s guilt or innocence
depends. 1

In case I., Akierson, B., said to the jury : *' If the pris-
oner hud said in the first instance. ' AVhy really I can not
tell where or how I got this beetle,' I should have said that
that was a reasonable statement, and that he ought not to
have been indicted for stealing it ; in that case it being as-
sumed that the prisoner does not deny that the article found
might once have been the property of the prosecutor.
Where, however, the prisoner is shown to have claimed the
thino^so found in his possession, and sworn by the prosecu-
tor, to be his own property by right of a purchase made
eif^ht years ago, and a continued possession up to the pres-
ent time, I should say that that was not so reasonable an
account of his possession as to exempt him from the neces-
sity of accounting for it to the satisfaction of the jury ; ibr
if it be true the prosecutor is wrong and the identity of the
thinT found with that lost is disputed. If the prosecutor
should satisfy the jury that the beetle in question was his,
then the statement of the prisoner accounting for his pos-
session of it must be false, and he must be presumed to
have stolen it, although it was not found in his possession
until fifteen months after the loss. The question, there-
fore, is simply one of identity. Is that beetle the thing
which was bought by the prisoner at the sale of his mother's
goods eight years ago ; or it is anotlier and different beetle
which was in the possession of the prosecutor within fifteen
months when it was lost? If the latter be the case, the
prisoner is guilty."

1 Queen v. Evans, 2 Cox C. C. 270 (1847).

524 PEEsmiPTivE EVIDENCE. [rule 109.

Sub-Rule 3. — What is or is not ^^ recent'' loilJtin Sub-
Bide 1 depends upon the cost, bulk, or transferability of
the article or property stolen.^

Thfit the question whether a possession is recent or not
must depend on the nature of the property is clear. In
such a case the inquiry naturally arises whether the goods
are of a description in common use, or such as might, in
the ordinary course of things, come honestly and regularly
into the possession of the person found with them, and
whether they are of a nature easily passed from hand to
hand. ''Suppose the Pitt Diamond or the Crown Jewels
were stolen, and, after the lapse of one or two years, found
in the possession of a person in a comparatively humble
station of life, who refused to give any account of where
he got them, would there be anything harsh or violent in
presuming that he had not come by them honestly? But
suppose the goods lost were merely a pair of shoes, or a
coat, such as in his station in life it would be natural and
proper for the prisoner to wear, and that these were not
traced into his possession until after a few months from the
time of the theft, the injustice of making so violent a pre-
sumption as to deem him the thief becomes obvious at
once." " Even if the point were not settled by authority,
we should come by a simple process of reasoning to the
conclusion that there can be no absolute rule for drawing,
from recent possession of stolen property, a presumption
of guilt without reference to the nature of the property.
The possession of a metallic or paper piece of money of
the smallest denomination five days after it was stolen might
have less weight as evidence than the possession of the
library of Harvard University or Power's Greek Slave,
or an elephant, five years after the larceny of such property.
It would ordinarily be more probable that the possessor

1 What is a " recent possession "is a vexed question, and depends in some meas-
ure on 1 lie nature of Uie iiroperty, as some articles pass from baud to liaud more
readily than others. Price v. Com., 21 Gratt. 846 (1872).

RULE 109.] rRESUMmONS IN DISFAVOR OF IXXOCEXCE. 525

could prove, by other evidences than his own testimony,
Low he obtained the })osses.sion in the latter case than in the
former. It is equally clear, upon authority and upon rea-
son, that the presumption from recent possession of stolen
property depends upon the nature of the property."

Illustrations.

I. A couple of sacks arc stolen from a farmer. A month afterwards
thoy are found in the possession of another person. This alone can not
raise au inference that the latter stole them.^

II. Two bolts of woolen cloth are stolen from M. Two months after
they are found in the possession of P. The presumption is that F. stole
thcm.-

III. An ax and a saw were stolen on March 1st. On June 1st they are
found in A.'s possession. This raises no presumption against A.^

IV. A horse disappears from the possession of its owner on Decem-
ber 17, 1849. On June 20, 1850, it is found in the possession of C. This
does not raise a presumption that C. is the thief.*

V. A shovel is stolen from A. in August, 184:1. In March, 1842, it is
found in C.'s house. This raises no presumption that C. stole it.»

VI. A beetle head is stolen from W. Fifteen months afterwards it is
found In the possession of E. This does not raise an inference that E. is
the thief .6

VII. A Ave dollar bank-note is stolen from B. and a couple of days
after is found in the possession of A. This alone does not raise a pre-
sumption that A. is the thief.'

VIII. A saddle is stolen from a shop in December, 1852. In May,
1853, it is found in the possession of J. This raises no presumption that
J. is the thief.**

The reason for this limitation to the rule is well expressed
in a learned note to case I. '* If the property," says the

1 Cockins* Case, 2 Lcwin, 235 (1836).

' R. r. Partridge, 7 C. & P. 551 (1836).

» U. r. Adams, 3 C. & P. G03 (ISi'J) ; R. v. Ilewlett, 2 Rnas. on Or. 728, note ; R. r.

Dewhir8t,2 Slark. Ev. 419, note; U. r. ,2 C. & P. 45:) (1820); State r. Shaw, 4

Jones (,L.), 446 (1857) ; State v. Kiuman. 7 Rich. (L.) 497 (1354) ; Warreu v. Slate, 1 O.
Greene, 106 (1848).

* It. V. Cooper, 3 C. & K. 318 (1852).

i> U. V. Cruttcuden, 6 Jur. 207 (1842).
« (^uecn t'. Evans, 2 Cox C. C. 270 (1847).
' U. I-. Atkinson, 1 Cr. & Dix, 101 (1825).

* Jouea V. Stale, 26 Miss. 247 (1653).

520 PRESUMPTIVE EVIDENCE. [rULE 109.

writer, "has not recently changed hands ; if the time since it
passed from the possession of the rightful owner is con-
siderable, then the liklihood of his having forgotten (where
he obtained it and thus explain his possession) is increased,
and with it the difficulty of giving an account. After an
interval of time the means of proof are lessened. People
move away from place to place, they die, and little circum-
stances are confounded together, those of the time with
those subsequent or antecedent. The memory of two per-
sons equally honest and intending the truth may not be
equally strong; they may differ from each other in the
recollection of facts, or enmities may have grown up, and
the occasion may be laid hold of to gratify a vindictive
feeling. Again, the circumstances in life of the party may
be a material point in the question. A man engaged in
important daily avocations in which his mind is employed
will take less notice of transactions of a different nature ;
his memory will be less strongly impressed with particulars
regarding them ; he will, perhaps, never recur to them.
Of course, therefore, the impression will be less lasting.
It will become overlaid with new and more intereslinsr
matter, till the traces of it are lost, and this effect will be
likely to happen more or less soon as the object is of less
or more value, or of less or greater bulk ; and as it may
happen to be an article that is more or less frequently
brought under the party's view. Judges, therefore, hold,
and most reasonably hold, that a person is not to be called
upon to give an account at a distant period after the theft.
The question, however, of distance of time or recent pos-
session must be at all times one of fact under the circum-
stances, and a jury under the judge's direction must
ultimately decide." And in case I. Coleridge, J., said to the
jury : " If I was now to lose my watch and in a few min-
utes it was to be found on the person of one of you, it
would aiford the strongest ground for presuming that you
had stolen it ; but, if a month hence it were to be found in
your possession, the presumption of your having stolen it

RULE 109.] PRESUMPTIONS IX DISFAVOR OF INNOCENCE. iliS?

would 1)0 f^rcatly weakened, because stolen property usually
passes through many hands."

In case II. it was urged that the possession was not suffi-
ciently recent to raise the presumption. But Putteson, J.,
said: " I think the length of time is to be considered with
reference to the nature of the articles which are stolen. If
they are such as pass from hand to hand readily, two months
would bo a lonjx time; but hero that is not so."

In case rv. Maule, J., said he thought there was no case
to go to the jury — the possession was not sufficiently
recent. Where a man is found in possession of a horse
six or seven months after it is lost, and there is no other
evidence against him but that possession, he ought not to be
called to account for it.

In case v., Gurnoy, B., said to the jury: " I have fre-
quently had occasion to tell you gentlemen that when
property proved to be stolen is found shortly after the
theft in the possession of a party, that person is to be pre-
sumed to be the thief, unless he can explain satisfactorily
how he came b}^ it. But in this case I do not think the
possession of this shovel sufficiently recent to raise that
presumption against the prisoner. A period of six months
has elapsed since the property was lost, in which time it
might have passed through several hands,"

In case VI. it was said: " In cases where property of
such insignificant value as that laid in this indictment is
shown to have been stolen so long as fifteen months before
it is discovered in the possession of a stranger, that person
ought not to be called on to answer for that possession on a
charge of felony, for it might reasonably be inferred that
he had come honestly by it, in that long interval reference
being always had to the character and value of the thing
itself."

In case VTI. it was said: "The finding of stolen ]->rop-
erty on the prisoner, recently after the taking, is evidence
of the larceny having been committed by him, as it is of

528 PRESUMPTIVE EVIDENCE. [llULE 109.

buriilaiy, if the goods had been burglariously taken, and
sufficient to call on him to account for his possession, yet
in a case of a bank-note such finding, if evidence at all, is
too sliixht to found a verdict upon, for the note passes easily
and quickly from hand to hand, without examination, and
people are not to be expected to mark each note, or to be able
to show from whom it has been received. If, indeed, the
note were of a large amount, it might be otherwise."

In case VIII., it was said: "The evidence shows that
the goods were not found in the possession of the accused
until the lapse of five or six months after the taking, and
the question here presented is whether such possession,
found after such lapse of time, of itself raises a presump-
tion in law of a felonious taking by the accused. No defi-
nite length of time after loss of goods and before possession
shown in the accused, seems to be settled as raising a pre-
sumption of guilt. When the goods are bulky or inconven-
ient of transmission or unlikely to be transferred, it seems
a greater lapse of time is allowed to raise the presumption
than when they are light and easily passed from hand to
hand, and likely to be so passed, because in the one case the
goods may not have passed through many hands and the
proof to justify the possession may, therefore, be more
simple and easy ; but in the latter case the goods may very
probably have come to the accused through many persons,
and their transit, from the smallness of their nature and
value, be much more difficult to be proved. Yet all the cases
hold that the possession must be recent after the loss, in
order to impute guilt; and the presumption is founded on
the manifest reason that where goods are taken from one
person and are quickly thereafter found in the pos-
session of another, there is a strong probability that
they were taken by the latter. This probability is stronger
or weaker in proportion to the period intervening between
the taking and finding; or it may bo entirely removed by
the lapse of such time as to render it not improbable that

RULE 110.] rRESUMmONS IX DISFAVOR OF INNOCENCE. 529

the goods may have been taken by another, and passed to
the accused, and thus wholly destroy the i)resumption. In
prosecutions for larceny of chattels, like that in this case, it
has been well held that after the. lapse of such a period of
time as in this case, the mere fact that the chattels were
found in possession of the accused, created no presumption
of criminality, and that such possession, without other evi-
dence of any kind to establish the charge, is not even suffi-
cient to put the party on his defense. We recognize the
soundness of this rule."

RTJLiE 110, — From proof of a sudden change having
taken phvce in tlio life and circumstances of the
accused subsequent to the crime, a presumption t)f his
guilt may arise.

Illustrations.

I. A., a rich man, is found murdered and robbed. B., a poor relative,
immcdiatel}' afterwards com meuces to live and spend money like a rich
man. This may raise an inference of B.'s guilt. i

II. An inn-keeper was in such poor circumstances that the owne/of the
inn would not trust him for a quarter's rent, nor the brewer for a barrel
of beer. One night a guest, carrying with him a large quantity of money,
is murdered at the inn. Immediately thereafter the inn-keeper is observed
to be "flush." His family commence to dress well, and he purchases a
malt-house. This raises an inference that the inn-keeper was the mur-
derer.^

III. A trunk containing twenty-three bank bills of the denomination of
$100 is broken into and the money stolen. M. is indicted for the crime.
The fact that before the time of the robbery M. was in poor circumstances
and that afterwards he was possessed of several' bank bills of a large
denomination is relevant, and raises an inference against JI., although
the bills are not ideutilled as the bills stolen from the trunk.*

IV. M. is indicted for a burglary and robbery. It appears that before
the crime M. had no money and few clothes; that a short time afterwards
he bought two suits, and also some furniture, and had money in his
pocket. This raises an inference against M.*

1 Best Ev., sec. 459.

2 Diayue's Case, 6 Leg. Obs. 123 (1G54).

« Com. f. Montgomery, 11 Mete. 53-1 (1S46).
« Moyo V. State, 66 Ga. 7A0 (ISSl).

530 rRESOIPTIVE EVIDENCE. [rULE 111.

In case ITI. it was said : <' The further objection is that
the judge instructed the jury that the possession by the
defendant of two one hundred dolhir bills, though not iden-
tified as a part of the property stolen, was still a circum-
stance proper for their consideration as tending to show
laro-e sums of money in the hands of the defendant subse-
quently to the larceny. Such evidence may be competent.
Its effect may be very slight, and, in many cases, furnish
not the least ground for charging a party. The possession
of a large sum of money, with strong accompanying cir-
cumstances of guilt of an independent character, accompa-
nied with evidence of entire destitution of money before the
time of the larceny, may properly be submitted to the
jury.'-'

RULE 111. — The fact tliat tlie accused has given false,
inconsistent, or contradictory accounts of the circum-
stances of the crime or of his relation to the act,
raises the presumption that he is the criminal.

Illustrations.

I. D. was suspected of having poisoned E. It appeared tbat he had
stated to F. that E. had died of a cold induced by wet feet; to S. that he
had ruptured a blood vessel, and to II. aud J. that he had died from the
effects of a venereal complaint. This raises an inference that D. was
guilty.i

IT. A person is murdered in the night in a house in which C. was at
the time. It appears that C. on being questioned stated at one time that
the murder was committed by five robbers whom she saw break in. At
another time she stated tliat she was. asleep all night and heard no one
in the house. This raised a presumption of her guilt.2

III. A. is found in possession of a stolen horse. He states that he
had purchased it at D. But there was not time enough for A. to have
bought the horse at D. and to have reached the place where he was
arrested. This raises a presumption of A.'s guilt.^

1 R. V. Donellan, Phil, Tr. 126.

2 state V. Cicely, 13 S. & M. 206.

3 State V. Adams, 1 Hayw, (X. C.) 464.

RULE 111.] TKESUMPTIONS IN DISFAVOR OF INXOCEXCE. 531

IV. R. is indicted for stealing from dwelling-houses. Ou being inter-
rogated slie stated at one time tiiat slie is a widow, at anotlier tliat
slie has a husband; to one she says that the property is hers, having pur-
chased it in an adjoining city; to another she says that it was brought to
her liouse by a man in embarrassed circumstances to couceal it from his
creditors. This raises a presumption of R.'s guilt. i

V. A.'s house is robbed and burned. Banlc bills of the same denom-
ination as were taken are found to have been passed by G. to different
persons after the robbery. To one he stated that he had received them
from the sale of a crop of cotton; to another that he had received them
f)r building a house; to another by the sale of six negroes. The judge
instructed the jury on the trial of G. for the robbery that giving incon-
sistent and contradictory accounts in relation to the manner in which he
obtained tlie bills was evidence to prove that he did not come honestly by
them. Meld, correct.^

In caso V. it was said: " It is insisted that tliis instruc-
tion was erroneous for that in the first place such incon-
sistent and contradictory declarations do not in law prove
more than that some of them are false, and secondly, that
if they amount to proof of a dishonest acquisition they
do not, as the judge intimates, furnish evidence that the
prisoner stole the bills which the prosecutor lost or com-
mitted the arson of which ho was accused. To form
a correct judgment of the validity of the objections, it is
indispensable that we should first ascertain the meaning of
the instruction to which they apply. Are we to understand
the judge as having declared that the contradictory state-
ments did prove a dishonest acquisition ; or only that they
were evidence having a tendency to prove it, relevant to
that purpose and fit to be weighed by the triers with a view
to the determination qf that fact? "We can not doubt but
that the former is not, and that the latter is the sense of
the instruction which he intended to jrive, and which the

1 MaryUilcy's Case, 1 City Hiill Rcc. 2^ (ISIO). And gee Com. r. Goodwin, U
Gray, 55 (ISjO). The admission In evidence of tlie prisoner's false statements made
at the time of hi3 arrest warrantinj^ an inference of puilt, does not entitle him to
sho\v that he had previously, on other occasioue, given a different and true account
of the same facts. Id.

^ State V. GiUis, 4 Dev. (L.) 607 (ISM).

532 pRESOiprm] evidence. [rule 111.

jury understand his words to convey. * * * Upon an
anxious and deliberate consideration of all that has been
in-fT^ed in argument, and of all which our own reflections
can suggest, we are bound to declare that wo see no error.
Contradictory declarations in respect to a fact do not,
indeed, absolutely and directly prove more than that all of
them can not consist with the fact. All may, some of
them must, be untrue. If made by an individual in regard
to a matter of which he has positive knowledge, he is guilty
of falsehood. But the fact of falsehood once established,
it becomes in many cases an important piece of evidence
to ascertain other facts — the causes which induced and the
ends to be promoted by a resort to falsehood. There is
direct testimony of an arson committed under circumstances
clearly indicating that a robbery was at the same time per-
petrated by the incendiary. An individual who before the
commission of these crimes was destitute of money and of
property immediately thereafter quits the neighborhood,
travels to a considerable distance to and fro without an
assignable motive, is in possession of four bank bills con-
stituting a large sura of money, corresponding in amount
and in the character and respective denominations of the
bills with those stolen from the prosecutor, and busies him-
self in converting these into bills of another kind, and of
less value, for which he gives a premium. No mind capa-
ble of drawing a conclusion from connecting facts can
hesitate to acknowledge that such testimony strongly
attaches to this individual, the charge of the theft and arson.
But in addition to these facts there is another circumstance.
In the course of his wanderings he gave many relations to
different persons at different places, with respect to the
manner in which this money, so strangely in his possession
and so strangely used, has been acquired by him, and these
relations are wholly inconsistent with each other. The
connection between such conduct and the motives for it,
the consciousness which it indicates and the interests which

RULE 112.] ruESUMrTiONS IN DISFAVOR OF i:;nocenci\ 533

arc intended to be served by it, arc unquestionalj)}' matters
well meriting the consideration of those whose grave duty
it is by all the means in their power, to ascertain the truth
of the imputed charge. Falsehood, diversified in its
forms, but always repeated on this point, clearly tends to
show a consciousness of dishonest acquisition and a solici-
tude to embarrass inquiry and to prevent detection. That
it proves dishonest acquisition is not an inference of law,
nor was it the instruction of the judge; but that it is rele-
vant to that fact, and is evidence for that purpose, fit to bo
considered and weighed by the jur}', seems well warranted
by reason, observation and experience. AVhether by itself
or in connection with the other matters testified, it produces
a conviction so settled and undoubtlng as to induce the jury
to infer that fact as once proved to exist, must be left, as
it has been left, to their integrity, their intelligence and
their acquaintance with the ordinary concerns of human
life."

RULE 112 . — The fact that the accused had attempted to
stifle or thwart tlic investigation of the crime raises
the presumption that he is the criminal.

Illustrations.

I. S. is suspected of liaving poisoned T. It appears that S. has tried
in every way to prevent the body of T. from being exhumed and exam-
ined. This raises an inference of S.'s guilt. ^

II. S. disappeared while living in R.'s house. R. oeing suspected of
murdering him, and it being proposed to take up the basement floor,
objected stronc:ly, urging that if the floor was taken up the house would
fall doT.-n. The ollicers of the law persisted and the body of S. was
found underneath the floor. A strong inference of R 's guilt arose .^

III. C. being suspected of the murder of D., it is sought to compare
her feet with certain foot-prints. C. resists, and has to be conipellcd
by force to put her feet m the tracks. This raises a presumption of
guilt in C.3

1 R. r. St.nnsfleld, 11 now. St. Tr. 1402.

2 State f. Uobinson, Burr. Kv. 462.
8 Slate i: Cicely, 13 S. & M. 20o.

534 rnESU3iPTivE evidence. [rule 113.

RUX-E 113. — Fear, exhibited by the accused, raises a
presumption of guilt (A). But no presumption
can arise where the fear may be on account of
another act or crime (B).

Ulustrations.

A.

I. T. comes into a to^vn with a horse and immediately employs an
auctioneer to sell it. While the sale is going on T. is observed to look
excited and apprehensive, and on receiving the purchase-money leaves
the place at once, and on subsequently meeting the anctioneer endeavors
to avoid him. The conduct of T. raises a presumption of his guilt.^

II. A. being accused of the murder of B. shows a great repugnance to
looking at the dead body of B. This is relevant.^

III. S. disappeared while living with R., and suspicion was cast upon
E. because he refused to sleep in the house thereafter, giving as aground
that one of his children had died there suddenly. Subsequently the
body of S. was found buried under the basement floor of the house. R.
was convicted.^

IV. A. is indicted for poisoning his wife. The fact that A. after the
poison had been administered to his wife called at a neighbor's house
and stopped there some time, during which time he was unusually
silent and serious, is relevant.*

<' These circumstances," said the court in case I.,
*' strongly manifest a consciousness on the part of the pris-
oner that some flagrant wrong had been committed by him,
and an apprehension that it was known; which wrong
probably related to his possession and disposition of the
horse. We are told by an early and most venerable
authority that the wicked fly when no one pursues ; and
we are told elsewhere that conscience makes men cow-
ards. If the corpus delicti hadi been proved — that is that
the horse had been stolen — much less than the circum-

1 Tyner V. State, 5 Humph. 383 (1844).

2 11. V. Stewart, 19 How. St. Tr. 156; Mrs. Spooner's Case, 2 Chand. Am. Cr. Tr.
13; K. V. Ogilvif!, 19 How. St. Tr. 12S4.

2 State V. Robinson, Buit. Ev. 4G2.
* Johnson v. State, 17 Ala. 622 (1830).

RULE 113.] PRESUMPTIONS IX DISFAVOR OF INNOCENCE. 535

stances proved would have e.^tabli.^jbed that the prisoner was
the thief."

Ill case IV., it was said : *' We can not say that facts such
as silence which indicated unusual seriousness at such a
moment are inadmissible as evidence tending in some degree
to show the prisoner's guilty knowledge of the condition of
his wife, or to show his crime itself. Dou])tless, such a
circumstance by itself should weigh but little, and it should
be received with great caution, but we can not say that it
was wholly inadmissible. Roscoe, in speaking of the cau-
tion Avith which certain evidence should be received, says:
' Not unfrec^uently a presumption is founded from circum-
stances which would not have existed, as a ground of crim-
ination, but for the accusation itself; such as the conduct,
demeanor and expressions of a suspected person when scru-
tinized by those who suspect him '.^ If the conduct, de-
meanor and expression of the accused subsequent to the
crime may be proved as evidence of conscious guilt, al-
though to be received cautiously, it is not obvious why the
same indications at or about the time of the crime may not
be proved by the same purpose. A flight is universally ad-
mitted as evidence of the guilt of the accused, though not
conclusive. If we take a flight as evidence of fear, and
fear as evidence of a known cause of dread or apprehension,
we arrive thus at the inference of crime. But it is sufficient,
perhaps, for all practictd purposes to regard flight as im-
mediate evidence of crime, because it betrays conscious
guilt. In this instance then we take the flight, a thing in
itself blameless and innocent as evidence of conscious guilt,
a necessary consequence of the crime itself, and the con-
scious guilt of which the flight was evidence is proof, in its
turn, of the crime. In this instance, therefore, it is certain
that the law admits evidence of the party's conduct merely
to ))r()ve his conscious guilt, which is proof of crime. Kow
this conscious guilt is altogether internal, but the law allovrs

1 Roscoc Crim. Ev. 15.

536 TKESUMPTIVE EVIDENCE, [llULE 113.

that j)roof of it which consists of outward signs. Is a flight
the only outward evidence of conscious guilt? So far from
it, any indications of it arising from the conduct, demeanor,
or expressions of the part}'^ are legal evidence against him.
The law can never limit the number or kind of such indica-
tions. In the present case it may be presumed, because this
is consistent with the facts stated, that the poison was pre-
jiared by or before nine o'clock a. m., on Sunday, and that
preparations were made for it to be given to the deceased ;
and it is consistent to suppose that this was expected to be
done, and was done immediately. About nine o'clock a. m.,
on Sunday the prisoner appeared at the house of W., a
mile and a half from his own residence, and remained there
until about an hour after sunset. If guilty he had already
prepared for the destruction of his victim, the poison it is
probable was already producing its effects, and he was
aware of the fact. That was peculiarly the occasion for
conscious eruilt to reveal some evidence of the crime. If he
were unusually serious or brooding in his mind or impressed
with fear, these were admissible evidences of the crime,
upon the same principle that conscious guilt may be proved
by a flight."

B.

I. The house of A., a bachelor, is searched for a political prisoner
thought to be hidden there. A. makes no objection to the search until
they come to his bed-room. A person being there discovered in A.'s bed,
A. endeavors by all devices to prevent that person's identity from being
discovered. But A.'s fear arises not on account of the person being the
prisoner, but because the party in his bed is a woman of rank and repu-
tation with whom he is, unknown to everybody, carrying on a Uason.^

II. An habitual thief is taken into custody for a robbery committed on
A. The thief, imagining that an attempt to rob B. has been discovered,
displays great confusion and fear. Here conduct raising an inference of
guilt is caused by the recollection of another crime, for he has never
even seen A.^

1 In this case, which is often cited, A.'s presence of mind saved himself and her
by uncovering enough of lier person to the oflicer to indicate the sex without
betraying llie individual. Best Ev., sec, 400.

2 Best Ev., sec. 4C(i

RULE 114.] niESUMrXIOXS IX DISFAVOR OF IXNOCEN'CE. 537

RUIjE 114. — The fii{,'lit of the accused (A) or lils
attempts to escape (15) raise a presumption of liis
guilt ; unless it appear that the act \vas for another

reason (C).

lUustralions.

I. A. and B. are suspected of the murder of C, committed In Ken-
tucky, where all of the parties lived. It is shown that tliougli iiuniedi-
ately after the crime was committed a searcli was instituted for A. and
B., they could not be found, and were afterwards arrested many miles
distant in a neighboring State. This raises a presumption of their guilt."

II. A. is out on bail, pending his trial for a crime. "When the case is
called it is found tliat A. lias left the State and forfeited his bond. He is
subsequently brought baclv. His flight raises a presumption of his guilt.-

'< It was proven by the Commonwealth," it was said in
case I., " tliat the appellants, although quickly pursued by
soldiers and others, could not be found upon search made
for them at their homes, and were subsequently arrested in
or near the city of Cincinnati. These circumstances, unex-
plained, could not have failed to lend to the other facts an
additional presumption of guilt."

B.

I. M. -was on trial for murder. While the jury were considering their
verdict M. made Ids escape from the court-room. The jury failed to
agree. M. was captured and tried the second time. Held, that the for-
mer attempt to escape raised an inference of his guilt.*

1 riummer V. Com. 1 Bush, 76 (1866). And, see, People v. Ah Chor, 1 Idaho, 317
(1S70) ; People V. Stanley, -17 Cal. 117 (1373) ; SmUh v. Si:ue,5S Miss. 873 (ISSl) ; Math-
ews r. Slate, 0 Tex. (App.) 133 (ISSO) ; Arniild r. State, 9 Tex. (App.) 4:;G (1S!«0);
Aiken v. State. 10 Tex. (App.) GIO (ISSl) ; lilake v. State, 3 Tex. (Apj).) 581 (1377);
Gose r. State, C Tex. (App.) 1-21 (1S79) ; People v. Lock Wiug, 01 Cal. 381 (1882) ; Syl-
vester c. State, 71 Ala. 25 (ISSl).

2 Porter f. State, 2 Ind. 43.') (ISoO).

« Murrell v. State, 40 Ala 89 (1371) ; Foxley's Case, 5 Coke, 100b; 43 Eliz. ; People
V. Wong .Vli Xgow, 51 Cal. 151 (1830). In Iowa it is lield that the presumption of guilt
from an attempt to escape is very slight. "Anciently," says tlie court, " the com-
mon hiw attached undue sigiuflcance to an attempt to evade an-est, or to escape
from It. In our time, however, the law will not allow a p.irty to be convic'cd even
on his own confession, if it be uncorroborated." State v. Arthur, 23 Iowa, 432 (1807).
When a culprit recklessly destroys lite iu order to escape the eonsc<|ueuees of
aniiiher crime, the evidence of guilt of that crime is thereby strenglheued. Itevel
V. Stale, 20 Ga. 275 (1858).

538 PRESUMPTIVE EVIDENCE. [rULE 114.

II. A., on being apprclienclccl for a crime, attempts to escape. Tills
raises a presumption of A.'s guilt. ^

III. D., ■while in custody for a crime, attempts to bribe one of bis
guards. This raises an inference of D.'s guilt.^

IV. A. being accused of a crime jointly with B., advises and assists B.
to escape. This raises an inference of A.'s guilt.^

In case I. it was said : " The escape was an attempt to
flee, and it had reference to the charge in the case. Flight
in a criminal prosecution is one of the most common
grounds for a presumption of guilt. And when the flight
is connected with the offense charged, and for which the
accused is on trial, it is an act that indicates fear, and this
fear points to guilt. Acts speak as well as words, and they
are to be interpreted by the common experience of man-
kind. And a flight is universally admitted as evidence of the
guilt of the accused, though it is not conclusive." But
the fact that the prisoner had an opportunity to escape,
but did not avail himself of it, is not relevant. " It is sup-
posed," said the court, "that the admissibility of such
proof follows from the rule which turns an attempt to
escape against the prisoner. A strong declaration of Hume
in his treatise on the trial of Crimes, that such a fact should
be received as conclusive against any cases sustained by cir-
cumstantial evidence merely was cited. But the difference
between an attempt to escape and refusal to escape, whatever
degree of moral conviction the latter might carry to the
to the mind of the writer, is quite obvious when they are
offered as legal evidence. The attempt implies guilt and
operates against the party like a confession. The refusal
is an act and confession in his own favor. Once receive it
and the criminal courts will be loaded with such evidence.
It is almost as easily manufactured as a declaration of inno-

1 Dean r. Com. 4 Gratt. 541 (1847); Fanning v. State, 14 Mo. 386 (1851); State v.
Mallon, 75 Mo. 350 (1882) ; People v. Strong, 46 Cal. 302 (1873) ; State v. Williams, 54
Mo. 170 (1873) ; State v. Phillips, 24 Mo. 485 (1857).

2 Dean V. Com. 4 Gratt. 541 (1847) ; Whaley v. State, 11 Ga. 127 (18.52.)

8 People V. Ratlibun, 21 Wend. 509 (1839) ; People v. Pitcher, 15 Mich. 397 (1867).

RULE 115.] niESUilPTIOXS IX DISFAVOlt OF INNOCEXCE. 539

ccncc. The prisoner and his friends may introduce a third
person to give the advice and hear tlic refusal who may ])Q
a Avitncss with perfect integrity, A dupe himself, he may
testify to the fact without being guilty of perjury."

C.

I. A. and B., after the commission of a murder Avhich they are sus-
pected of being guilty of, fly from their homes to a distant Slate. Tliis
raises a presumption of guilt. Tiie fact that A. and B. fled Ijecause of a
fear of violence at the hands of their pursuers overthrows this presump-
tion.2

II. A. is confined in jail on a charge of murder. A. attempts to
escape. This raises no presumption of guilt of the murder, if A. sought
to get away from the jail because of his cruel treatment by his guards.'

III. F. who is suspected of a crime is found to have subsequently
changed his residence. F. is a peddler who is accustomed to go from
place to place. No presumption of guilt can arise from this circumstance
aloue.*

" But there was evidence," it was said in case I. " before
the jury tending to explain the concealment and flight of
appellants upon the ground that they were occasioned by
an apprehension of violence from soldiers or otherwise;
and this, in our opinion, w^as competent evidence which the
jury had a right to regard as conducing to rebut the i)re-
sumption of guilt arising from the concealment or flight of
the appellants."

RtXE 115. — The destruction (A), concealment (B), or
fabrication (C ) of evidence by the accused raises a pre-
sumption of Lis guilt — omnia prajsumuutur coutra
spoliatorem.

On the trial of Lord Melville,'* the solicitor-general (Sir
Samuel Eomilly), in addressing the House of Lords and

1 People r. Kathbun, 21 M'end. .'519 (1S39).

2 Pluiumer r. Com., 1 IJusii, 70 (1S6G) ; UolJcn r. State, 25 Ga. 527 (1S53) ; Arnold v
state, 0 Tex. (.Vpp.) 43G (1880).

s State r. Mallon, 75 Mo. 35G (1SS2).

* Be~t Kv., sec. 4G1.

6 2'Jllo\v. St. Tr. 119i (1S06).

540 PEESUMPTIYE EVIDENCE. [kULE 115.

speaking of the act of tlio prisoner in destroying certain
vouchers, said: " I should think it could hardly be necessary
to 3'our lordships collectively ; I am sure it can not be to
many of 3'ou individually, to state what inferences courts of •
justice always draw from the destruction of evidence.
Most of the cases that have occurred of that kind, at least
if those that I have known are civil cases; but I know of no
distinction in this respect between civil and criminal cases.
The presumption in one case is, as I conceive, as strong as
in the other. In civil cases, a party who destroys evidence
of a transaction is always charged to the full extent that
it w^as possible that that transaction could have gone. I will
state to your lordships a very few cases which have occurred
on questions of this kind (after citing Armory v. Delaniaire^
DaltoriY. Coatsioorth and Wltite v. Lincoln'^ he proceeded) :
" I have, however, hitherto only stated to your lordships
civil cases, but I am sure that no case occurs of any person
convicted of an offense upon circumstantial evidence, in
which the court does not act upon presumptions exactly of
the same kind. I would suppose that a man were indicted
for the murder of another, and that there was no evidence
ao-ainst him, but that which is called circumstantial evidence :
that is evidence of conduct or of circumstances which can
not be accounted for upon any hypothesis, but that of the
party being guilty. I will suppose a case of that kind, and
then I will ask your lordships, if evidence were to be pro-
duced that the prisoner had destroyed the clothes which he
Avore upon the day on which the man was murdered, whether
a jury would not be directed to "presume or Avhcther a jury
would not presume that the clothes so destroyed had been
stained with the blood of the man that was murdered, and
that they had been destroyed only for the purpose of sup-
pressing that evidence ? If a jury Avould not be expressly
directed to presume guilt from this, I would ask whether
the party's having destroyed the clothes he wore upon the

1 See Ante, ch. VII, p. 110.

RULE 115.] rRESUMPTIOXS IN DISFAVOR OF IXNOCENCE. 541

day on which the man was murdered would not be consid-
ered as most material evidence in • such a case? And
whether it could be evidence in any way, but that in which
I have stated that it must be presumed that no innocent man
would have destroyed that evidence, which would have con-
tributed to his acquittal if innocent, and could contribute
to his conviction only if he were guilty."

Illustrations.

A.

I. A. is accused of the murder of B. by poison. The fact that A. had
the body of B. interred with great haste is relevant on the question of
A.'s guilt. 1

II. I)., who resided with E., is accused of poisoning him. The death
of E. being very sudden, H., his guardian, wrote to D. saying that £>s he
suspected that E. might have been poisoned, he wanted his body opened
for the purpose of investigating that fact. D. replied, assenting, when
II. wrote a second letter as to the investigation of the body by physicians,
but sajing nothing about poison. When the doctors came 1). showed
them the second letter but said nothing about the first, and on being
asked the purpose of the examination toUl them that it was only for the
satisfaction of the family. The physicians, therefore, suspecting nothing,
omitted to search for poison, and 1). had the body immediately interred.
These facts were held to raise an inference of D.'s guilt.'

III. A person before being arrested for the murder of another attempts
to remove all trace of the blood and to destroy all the instruments of
the crime. This raises a presumption of guilt.'

IV. A. being accused of a crime attempts to spirit away a witness.
This is relevant.*

B.

I. S. is indicted for the forgery of a bank-note. On his being arrested
a forged bank-note is found concealed in the cuff of his coat. This
raises an inference of guilt. ^

II. A., who was a soldier, was accused of the murder of C. In order
to identify a soldier who liad sold a watch belonging to C. to B. the com-

1 R. V. Donn.ill, Wills' Circ. Ev. 18S.
» K. f. Donnellan, Phill. Tr. 131.
« Burr. Ev. 412.

* Martin v. State, 2S Al.i. 71 (18.56).

(■Stewart's Case, 2 City Uall Uec. 1S7 (1817) ; People v. Gardner, 2 Wheeler, 23
(1822).

542 PRESUMrTIVE EVIDENCE. [RULE 115.

pany was drawn np iu line so that B. could see them. While B. was
passing along the line to inspect the soldiers, A. attempted to conceal
himself behind the door of a house which stood near. This circumstance
is relevant in raising a presumption that A. Avas guilty. i

III. L. was indicted for the murder of his wife. It appeared that L.
had concealed her death from every one for several hours after it took
place. This is relevant. ^

lY. A. on being arrested for robbery takes a pocket-book out of his
pocket and slips it under his coat into the hands of his wife who stands
by him, then turns to the officers and declares he has no money. This
raises a presumption of A.'s guilt.^

In case III. it was said: *'The prisoner concealed the
killing for several hours. He has never admitted the kill-
ino- by himself and claimed that it was an accident or for
any cause excusable ; at least there is no evidence of
any such admission. Concealment, it is well settled, is
evidence of malice — of a premeditated design to commit
the deed. If he had not intentionally committed the deed,
some human emotion would have induced him to betray his
sorrow or his consciousness of his own overwhelming dis-
aster."

In case IV. the trial court in reference to that transaction
had instructed the jury that the suppression, destruction
or concealment of evidence against the accused was a cir-
cumstance from which they should draw the strongest infer-
ence of guilt, because if he was innocent he would have
no interest in concealing or destroying such testimony.
The Supreme Court thought the epithet "strongest" too
strong, but would not reverse the case on this ground.

C.

I. C. was absent from his house for over an hour, and on returning
said to his servant: " If any inquiries are made, say that I was not out
more than ten minutes." C. being indicted for a murder committed
during his absence from home, this request of his raises a presumption
of his guilt.*

1 Flanactan v. State, 25 Ark. 92 (1800).

2 Lanergan v. People, 6 Park. C. C. 225 (1863).
s Miller)-. People, 30 III. 406 (I860).

* R. V. Hush, Burr. Ev. i35.

RULE 115.] PRESUMPTIONS IX DISFAVOIl OF IXXOCEXCE. 543

II. A. is accused of shooting? B. with a pistol. A pistol Is found
beside B. in such a position that it would appear that it is a case of sui-
cklo. But it is proved that it Is A.'s pistol, and that A. placed it there.
This raises a presumption of A.'s gnilt.i

III. R., a postmaster, is charged with the embezzlement of a regis-
tered letter. In his books, entries concerning the letter are found to
have been erased and added to. This raises a presumption of R.'s
guilt.2

IV. A. person charged with murder is proved to have sent a letter to
the officers of the law throwing suspicion on another. This is relevant.*

In case III. it was said: "The falsification of record?!,
either by interlinoalions or erasures, with reference to a
matter in Avhicli the party making such falsification is su.s-
pected or char^^ed, or liable to the suspected or charged witli
neglect or wrong doing, is strong presumptive evidence of
guilt."

" The general rule is," said the court, in case IV., " that
whatever falsehood a person charged with crime, concocts
to avert suspicion from himself is admissible evidence
against him. And on the same principle whatever false-
hood a person thus situated puts forth to charge his own
offense upon another who is innocent must be competent
evidence against himself.

In a leading case, Chief Justice Shaw, said : *' To the same
head may be referred all attempts on the part of the accused
to suppress evidence, to suggest false and deceptive expla-
nations and to cast suspicion without just cause on other
persons; all or any of which tend somewhat to prove con-
sciousness of guilt, and when proved to exert an influence
against the accused."

1 E. V. Green, 7 How. St. Tr. 159 ; R. v. Norkntt, 14 Id. 1324.

2 U. S. r. Randall, Deady, 543 (1S<;9). In State r. Knapp, 45 X. H. 148 (1S63),
on the trial of an indictment for rape, the jury had been taken to view the
premises where the crime was alleged to have been committed. It appeared
that just previous to this a change had been made in the condition of the
place— some boards which had fallen off a fence were replaced by a per-
son acting in behalf of the prosecution. The court held that this cast the bur-
den on the State of satisfying the aiipellate court that the prisoner could not have
been injured by the change ; and that it was not enough to render it merely more
probable that no injury had been done to him.

Gardner v. People, 6 Park. C. C. iOS (1S06).

544 PRESUMPTIVE EVIDENCE. [rULE 115.

" But this consideration is not to be pressed too urgently,
because an innocent man when placed by circumstances in
a condition of suspicion and danger may resort to deception
in the hope of avoidingthe force of such proofs. Such was
the case often mentioned in the books of a man convicted
of murder of his niece who had suddenly disappeared under
circumstances which created a strong suspicion that she was
murdered. He attempted to impose on the court by pre-
senting another girl as the niece. The deception was dis-
covered, and naturally operated against him, though the
actual appearance of the niece alive afterwards, proved
conclusively that he was not guilty of the murder.^

Robbery may take place by putting in fear as well as by
force, or rather as has been said, fear may take the place
of force. But actual fear need neither be alleged nor
proved. " Provided," say the old writers,^ " the property
be taken with such circumstances of violence or terror, or
threatening by word or gesture as would in common expe-
rience induce a man to part with it from an apprehension
of personal danger, the law in odium sj)oliatoris will pre-
sume fear where there appears to be a reasonable ground
for it." In Nordeii's Case,^ this presumption was carried
as far as this. A person having been told that one of the
staffe coaches coming to the town where he lived had been
frequently robbed by a single highwayman, resolved to cap-
ture him. In pursuance of this resolve he put a small sum
of money and a pistol in his pocket and followed the coach
in a chaise. The highwayman duly appeared, and after
relieving the passengers in the coach of their valuables
came to him, and presenting a weapon demanded his money.
The amateur detective handed over his purse, and then
jumping from the chaise, with the aid of the passengers ni
the coach, captured the highwayman. The latter was held
guilty of robbing the chaise passenger.

1 Com. V. Webster, 5 Cush. 317, Shaw, C. J.

2 See ?::i.st'8 Pleas of the Crown, 711.

3 Fost. 129.

RULE lie.] rRESDMmOXS IN DISFAVOR OF INNOCENCE. 545

RULE lie. — Silence on the part of the accnsod when
charges are made aj^ainst him in his presence and
hearing, raises a presumption of guilt (A) unless the
charges are made in the course of a judicial interro-
gation ( B ) . But the failure of the accused to produce
on his trial evidence in his favor and Avithiu his poAver
raises a presumption of guilt ( C ) .

Illustrations.

A.

I. A. is accused of administering a poison to his wife witli tlie inten-
tion of killing her. A witness testifies tliat the wife had declared that
A. had attempted to poison her, in his presence, and that A. was stand-
ing near by, but made no response. This is relevant. >

II. One S. being murdered, II. says to R., "Everybody suspects j'ou.
I suspect you." R. remains silent. On the trial of R. for the murder of
S. this is relevant.2

III. M. was murdered by .stabbing. Before he died, being in the
presence of D., and in his hearing, M. saj-s that he won $55 from D., the
niglit before, and that D. had murdered him to get back the money.
This is relevant and raises an inference against D. on his trial for the
murder of M.'

IV. S. is indicted for the murder of T. Certain observations were
made by his wife in the presence of others on the subject of the crime, to
which S.made no direct reply. These statements are relevant against
S.*

v. Several times while confined in- jail, A. accused B. of the murder of
E. to which B. made no response. This is relevant.*

VI. M. is accused of a burglary and robbery. It appears that after
the crime was committed, M. and his brother were at a candy pulling to-
gether, when the brother, in M.'s presence and hearing, remarked that
he had §150 in his possession belonging to M. M. made no response.
This is relevant as an admission of M. that it was true.^

1 Com. t'. Gal.avan, 9 jUlen, 271 (1>!(>4). The conduct, demeanor, .ind expressfon
of the accused at or about the time of the commission of the crime with wliich he is
charged, are comiietcnt evidence against him. Blount v. State, 49 Ala. 381 (1873).

2 State r. Heed, C-2 Me. 130 (1S74).

8 Donnelly v. State, 26 N. J. (L.) 613 (1857) ; contra, State v. Edwards, 13 S. C. 30
0879).

* R. f. Smithies, 5 C. & P. 332 (1832).

6 Etlingcr f. Com., 98 Pa. St. 345 (1831) ; State v. Crockett, 82 N. C. 600 (1880).

« Moye V. State, 66 Ga. 740 (1881).

85

546 peesu:mptive evidence. [eule 116.

In case I. it Tvas said: "The statements of the defend-
ant's wife while in a room connected by an open door with
the narrow entry in which the defendant was standing,
related to acts done by the defendant or in his presence.
They were made in the defendant's own house, in the
absence of any officer of the law or anything which might
create constraint or apprehension, and und-^.r such circum-
stances that he might well have heard, and if he did must
have understood them, and known whether they were true or
false, and would have been likely, according to common ex-
perience, to reply to them and contradict them if untrue.
They are, therefore, admissible in evidence against him
within the rule laid down."

In case IT. the court said: " No doubt as to the fact that
he was told he was suspected is suggested. His silence is
not denied. A suspicion of crime conveyed to the prisoner
is so nearly similar to a charge of having committed the
crime that the jury would not be misled (by speaking of
the words as a "charge" of the crime) especially when
their attention is directed to the testimony upon which the
remark is predicated; and whether it was a suspicion or
charge the same law would be applicable. The probative
force of the fact would be the same in either case; or if
different, it would differ in degree only. The law given
was correct. * * * It is introduced by the remark of
the presiding judge that, it is not merely what the prisoner
says or does, but what he omits to do or say that may be-
come facts evidentiary of guilt. Then after alluding to the
facts as shown by the testimony, he says further, ' What is
the law? A statement is made cither to a man or within
his hearing that he was concerned in the commission of a
crime to which he makes no reply ; the natural inference is
that the imputation is well founded or he would have
repelled it.' This is a quotation from Best, on Presump-
tions, affirmed in State v. Cleaves^ and its justice and pro-

1 59 Me. 300.

RULE lie,] rPtESUMmONS IN DISFAVOR OF INNOCENCE. 517

pricty are there so fully illustrated that we deem it unnec-
essary to add anything to what is there said."

In case III. it was said : " AVhcn a matter is stated in the
hearing of one whith injuriously affects his rights and he
understands it and assents to it wholly or in part by a reply,
both are admissible in evidence, the answer because it is the
act of the party who is presumed to have acted under the
force of truth, and the statement as giving point and mean-
ing to the action. So, also, silence unless it be accounted
for * * * niay be taken as a tacit admission of the
fact stated, because a person knowing the truth or falsity of
a statement affecting his rights made by another in his
presence, under circumstances calling for a reply, will natu-
rally deny it, if he be at liberty so to do, if he docs not
intend to admit it. "Whatever is said to a prisoner on the
subject-matter of the charge, to which he made no direct
reply, is receivable as evidence of an implied acquiescence
on his part."

In case IV., although the wife was not admissible as a
witness, the court thought that this circumstance did not
vary the general rule stated in the last sentence.

In case V. it was said: " The circumstances under which
the accusation was made were so well calculated to elicit a
reply, that we are not prepared to say that the silence
of the prisoner was not a circumstance, though very
slight, for the consideration of the Jury. Silence under
certain circumstances, may amount to a tacit admission of
guilt."

*< "Where an individual is charged with an offense or
declarations are made in his presence or hearing touching or
affecting his guilt or innocence of an alleged crime, and he
remains silent when it would be proper for him to speak,
it is the province of the jury to interpret such silence, and
determine whether his silence was, under the circumstances,
excused or explained. At most, silence under such circum-
stances is but an implied acquiescence in the truth of the

548 PRESUMPTIVE EVIDENCE. [rULE 116.

stntoments made by others, and thus presumptive evidence
of guilt, and in some cases it may be slight, except as con-
firmed and corroborated by other circumstances. But it is
some evidence, and, therefore, except in those cases where
the statements are made upon an occasion and under cir-
cumstances in which the individual sought to be affected
could not with propriety speak, as in the progress of a
judicial investigation or in a discussion between third per-
sons not addressed to or intended to affect the accused or
induce any action in respect to him, so that for him to
speak would be a manifest intrusion into a discourse to
w'hic'h he was not a party, the evidence is competent and
should be admitted. Any declaration of the individual in
response to a statement so made would be admissible in evi-
dence, and an omission to make any ansAver to it or to
notice it like other acts of the party is to be interpreted and
such effect given to it as evidence, in connection with the
other circumstances of the case, as the jury in their discre-
tion shall think it entitled to. The implication of assent
to a statement affecting the guilt or innocence of an indi-
vidual, from an omission to controvert, qualify, or explain
it, arises from the fact that a person knowing the truth or
falsity of a statement affecting his rights made by another
in his presence, will naturally, under circumstances calling
for a reply, deny it, if he be at liberty to do so, if he do
not intend to admit it." ^ In a Missouri case^ it is said:
" It is not in all instances where declarations are made in
the presence and hearing of a person that these declarations
can be given in evidence against him. They frequently call
for no reply, and sometimes they are impertinent and
deserve no notice. Unless it is shown that the party is imme-
diately concerned, and that unless he did speak, his silence
might fairly be construed into an admission, the declara-
tions Avill not be admissible."

1 Kelley v. People, 55 N. Y. 573 (1874).

2 Stale V. Hamilton, 55 Mo. 523 (1874).

RULE IIG.] rnESUMlTIONS l.V DISFAVOK OF INNOCENCE. 5-kO

B.

I. A. and B. are charged with the joint commission of a felony. On
his examination before the conimittinjj; magistrate, A. states iu the pres-
ence of B. and in his hearing that lie and B. committed the crime, but li.
malics no response. This is not relevant, and raises no presumption
against B.^

II. On the trial of C. a witness makes certain statements as to C.'s
guilt. C. makes no response. This raises no inference of guilt against
C.2

III. Two watchmen took K. Into custody and carried him to the
station, where one of them said that K. had been I'obbiug a man. li.
soon came in and pointed to K. and said "that man has stolen my
money." K. afterwards laid a bag on a shelf, which one of the oflicers
observing, took up and found it contained money. II. said it was his liag
and contained all the money he had. K., though within liearing of all
that was said, remained silent. This raised no presumption against K.,
and the declarations of R. and the officer are irrelevant.*

IV. W. was confined in prison awaiting trial on a charge of burglary,
Wliile in his cell N. was brought to the door anil asked by a police ollicer,
in W.'s presence and hearing if he was a certain party whom she had
seen near the building before the time of the burglary. N. answereil,
"Yes, I will swear to it." \V. made no denial or response. This raised
no presumption of W.'s guilt aud was irrelevant.*

Cases I. and II. are founded on the rule that a prisoner
on trial is not obliged to retort upon or deny every state-
ment which is made during the proceedings, and as fast as
they are made. Under a judicial interrogation, the pris-
oner has a constitutional right, under the principles of the
English common law, to remain silent.

In case III. the position of the parties at the time was
held by the court to bring them within the meaning of the

1 n. V. Appelby, 3 Stark. 3.3 (1821) ; contra, Maguire v. People, 5 N. Y. (T. & C.) 6S2
(1874).

2 Burr. 482, Shaw, C. J., in Com. v. Kenney, post.

8 Com. V. Keuiniy, 12 Mete. 2!) (ISIT) ; State i\ Weaver, 57 Iowa, 732 (1SS2) ; con-
tra, Kellcy r. People, 65 N. Y. 572 (1874).

* Com. r. Walker. 13 Allen, 570 (18(U)). In a New Jersey c.ise it is said: "The
«pt<wtjiulic,ial investigation instituloil by Coroner C^onnery, of the city of New York,
inipr(>i>cr and informal as it was niiijhl have restrainetl llie accused from denying-
or replying to tlie statement of Moses, and would have protected him from having
any unfavorable iufereuce drawn from his silence." Douuelly r. State, 26 N. J. (L.)
613 (1857), aud see SuUivau r. People, 31 Mich. 1 (1S75).

550 PRESOITTIYE EVIDENCE. [rULE 116.

phrase, " judicial interrogation." Said Shaw, C. J. : "In
some cases where a statement is made in the hearing of
another in regard to facts affecting his rights, and he makes
no reply, it may be a tacit admission of the facts. But this
depends on two facts : first, whether he hears and under-
stands the statement and comprehends its bearing; and
secondly, whether the truth of the facts embraced in the
statement is wnthin his own knowledge or not; whether he
is in such a situation that he is at liberty to make any reply ;
and whether the statement is made under such circumstances
and by such persons as naturally to call for a reply if he
did not intend to admit it. If made in the course of any
judicial hearing, he could not interfere and deny the state-
ment; it would be to charge the witness with perjury, and
alike inconsistent with decorum and the rules of law. So, if
the matter is of something not within his knowledge; if
the statement is made by a stranger whom he is not called
on to notice, or if he is restrained by fear, by doubts of his
rights, by a belief that his security will be best promoted
by his silence — then no inference of assent can be drawn
from that silence. * * * The circumstances are such
that the court are of opinion that the declaration of the
party robbed, to which the defendant made no reply, ought
not to have been received as competent evidence of his
admission either of the fact of stealing, or that the bag and
money were the property of the party alleged to be robbed.
The declaration made by the officer who first brought the
defendant to the watch-house, he had certainly no occasion
to reply to. The subsequent statement, if made in the
hearing of the defendant (of which, Ave think, there was
evidence) was made whilst he was under arrest, and in the
custody of persons having official authority. They were
made by an excited, complaining party to such officers who
were just putting him into confinement. If not strictly an
official complaint to officers of the law, it was a proceeding
very similar to it, and he might well suppose that he had no
right to say anything until regularly called on to answer."

RULE 116.] PRESmiPTIOXS IN DISFAVOR OF INNOCENCE. 551

Case IV. proceeds on the same principle, viz. : thcofBcer
being present, it was in the nature of a judicial interroga-
tion.

C.

I. G. is indicted for the murder of T. The question Is, was G. in the
company of T. at a certain time. Circumstantial evidence is produced
to sliow that lie was, and G. does not account for his whereabouts at that
time. This raises an inference that G. was there. ^^

II. A. is indicted for selling liquor without a license. The sale is
proved, and A. does not produce any license. The presumption is that
he has none.^

In case I. it was said: "A prisoner pressed by the force
of accumulated circumstances may not unfrequentlv find
himself in the position where he is required to account for
his whereabouts on a given day, or to show how he became
possessed of a given sum of money or article of personal
property. The omission to produce such evidence has
never been regarded as absolute and conclusive evidence of
the fact in dispute. Neither the elementary writers nor
the adjudicated cases furnish any such rule of evidence.
The absence of such evidence, especially when it appears
to be in the power of the prisoner to furnish it, creates a
strong presumption of guilt, a strong inference against him
and is a circumstance greatly corroborative of the truth of
the evidence given upon the other side. In a doubtful case
it would justify the jury in resolving the doubt against
him."

Where by statute a defendant in a criminal case is
allowed to testify in his own behalf (a privilege not his at
common law), the question has arisen whether a refusal to

1 Gordon v. People, 33 N. Y. 508 (isr.5) ; People v. Dyle, 21 N. Y. 578 (ISCO). A fail-
ure to produce eviacnce in his favor Milluii his power may raise a presumption ot
guilt. People v. McWhorter, 4 Barb. -138 (ISiS) ; Com. r. Clark, U Gray.SGV (ISCO).
But not, it seems, in Louisiana. State r. Carr.'JS La. Ann. 407 (1ST:$). The failure of
an accused person to produce evidence of good character raises no presumption that
his character is bad, or that he is guilty of the offense charged. State v Uphani. 33
Me. 2i;i (1SJ4); State r. Collins. 3 Dcv. 117; State v. O'Neal, 7 Ired. (L.) 251 (1*47);
Donohoe v. People, 6 Park. 120 (ISCt).

8 Slate V. Simons, 17 N. H. S3 (1S45),

552 PKESUMPTITE EVIDENCE. [RULE 116.

avail himself of this privilege raises a presumption against
him. In several cases it has been held that it does not.^
This conclusion appears to have been drawn from a consid-
eration of the constitutional principle that no man shall be
called upon to give evidence against himself. But it vs^ould
seem as illogical for a court to reject this inference as it
is impossible to prevent a jury from taking such fact into
consideration.^ The statutes of most of the States expressly
prohibit such an omission from being used by the prosecu-
tion in any way to the detriment of the defendant. But in
the absence of such a provision it is difficult to see why such
a presumption may not arise, and be taken into considera-
tion by a jury. Chief Justice Appleton, of Maine, holds
to this view and argues it at length in several cases decided
by him where this question was raised. *' The statute
authorizing the defendant in criminal proceedings to testify
at his own request," says he,^ " was passed for the benefit
of the innocent and for the protection of innocence. The
defendant in criminal cases is either innocent or guilty.
If innocent, he has every inducement to state the facts
which would exonerate him. The truth would be his pro-
tection. There can be no reason why he should withhold
it and every reason for its utterance." But where a person
does testify in his own behalf the fact that ho does not
controvert an important statement of the witnesses against
him, and which is within his personal knowledge, raises
the presumption that it is true.*

1 Beavers v. State, 58 Ind. 530; McKenzie t'. State, 2G Ark. 334; People v. T^ler,
36 Gal. 522; Ruloflf v. People, 45 N. Y. 213; 5 Lans., 261 (1S71) ; Com. v. Harlow, 110
Mass. 411 (1872).

* See State v. Cameron, 40 Vt. 555.

3 State V. Cleaves, 59 Me. 300 (1871) ; State v. Lawrence, 57 Me. 574; State v. Bart-
lett, 55Me. 200.

* Comstock V. State, 14 Keb. 205 (1883) ; Stover v. People, 50 N. Y. 315 (1874).

PART VI.

GENERAL RULES.

(553)

CIIAPTEE XXI.

GENERAL RULES AS TO PRESL^IPTIOXS.

RULE 117. — A "presumption" is a rule of law that
courts or juries shall or may draw a particular infer-
ence from a particular fact or from particular evi-
dence, unless and until the truth of such inference is
disproved.

Suh-Rule 1. — A presumption ofJaio is a rule of law that a
particular inference shall be drawn by a court or jury
from a particular circumstance.

Suh-Rule 2. — A presumption of fact is a rule of laiv that
a fact otherwise doubtful may be inferred from a fact
which is proved.

*« Presumptions are of two kinds, natural and legal or
artificial. Tiie natural presumption is when a fact is proved
wlierefrom, by reason of the connection founded on infer-
ence, the existence of another fact is directly inferred.
The legal or artificial presumption is where the existence of
the one fact is not direct evidence of the existence of the
other, but the one fact existing and being proved, the law
raises an artificial presumption of the existence of the
other." 1

A presumption is an inference as to the existence of a
fact, not actually known, arising from its usual or neces-
sary connections with others which are known." '^

"A presumption of any fact is properly an inference of
that fact from other facts that are known ; it is an act of

1 Gulick V. Loder. 13 X. J. (L.) 72 (1832).

2 ratterson v. McCauslaud, 3 Blaud Ch. 71 (1830).

(555)

556 PRESUMrXIYE EVIDEXCE. [lIULE 117.

reasoning and much of human knowledge on all subjects
is derived from that source. A fact must not be inferred
without premises that will warrant the inference ; but if no
fact could thus be ascertained by inference in a court of
law, very few oiFeuders could be brought to punishment." ^
I *' Presumptions of fact are but inferences drawn from
other facts and circumstances in the case, and should be
made upon the common principles of induction." ^

" Presumptions of fact are at best but mere arguments
and are to be judged by the common and received tests of
the truth of propositions and the validity of arguments." ^

*' Presumption is allowed to prove facts, even in criminal
cases ; and one of the highest modes of proof is to show the
existence of circumstances which could not have existed if
the fact proved had not existed. And what is this kind of
proof but presumption. A single circumstance may have
little strength, and of itself afford no foundation ; but when
joined to many more of the same nature, all fitting each
other and having the same relation, the whole united may
form an arch strong enough to support a presumption of
the most important fact." *

*' Juries have the right to infer what a man intends to do
and what he actually has done, from his conduct, beyond
the positive testimony in a case." ^

*' Presumptions of fact are conclusions drawn from par-
ticular circumstances. They are such as are formed
[found?] by experience to be usually consequent upon or
coincident with the facts presumed, and cither do not arise or
are rebutted if they do not correspond with or are not ade-
quate to account for the circumstances actually proved." ^

In Justice v. Lang,'' it is said : *' Presumptions of law are,
in reality, rules of law and part of the law itself, and the

1 Abbott, C. J., in R. v. Burdett, 4 B. & Aid. 161.

» Mason, J., in O'Gara v. Eisenlohr, 38 N. Y., 298 (1868).

2 Lawliorn v. Carter, 11 Bush, 7 (1ST4) ; Bach v. Cohn, 3 La. Ann. 103 (1848).
* Waties, J., in Frost v. Brown, 2 Bay, 133 (1708).

6 Union Bk. v. Middlebrook, 33 Conn. 100 (1865).
« Sutphen V. Cushman, 35 111. 187 (1864).

7 52 N. y. 323 (1873).

KULE 117.] GENERAL IIULES AS TO PRESUMPTIONS. 557

court may draw the inference whenever the requisite facts
arc developed, whether in pleading or otherwi.se, while all
other presumptions, however obvious, being only inferences
of fact, can not bo nuido without the intervention of a
jury.^ The presumption of innocence, of sanity, that all
men are free, etc., are examples of presumptions of law.
So, too, a promise will be implied from a legal obligation.
But the presumption of the existence of one fact from the
existence of another, that is, the process of ascertaining
one fact from the proof of another fact, is within the ex-
clusive province of the jury.^ The usual presumption as to
a ship which becomes distressed, or founders without appar-
ent cause, shortly after leaving port, is that she was unsea-
orthy when she sailed; but the presumption is one of fact,
and for the jury, and not of law, for the court.' So, long
possession is evidence of a grant; but the cogency of such
evidence is for the consideration of the jury, under instruc-
tions from the court, and subject to the power of the court
to set aside the verdict if against evidence.* Whether an
argreement to pay interest is to be presumed from the estab-
lished usage and custom is a question for the jury .^ Where
there is a dispute as to the facts which go to prove the making
of a new promise, whether a sufficient promise has been made
to take the case out of the statute of limitations, is a mixed
question of law and fact for the jury.^ When there is a
transfer of property, the ownership of which carries with
it a legal obligation or a grant of an estate subjecting the
grantee to certain liabilities, the assumption of the obliga-
tion and liability will result by legal implication from the
acceptance of the transfer or of the estate. But both the
transfer and grant are executed contracts — completed acts,
vesting the property, or estate, in the transferee or grantee

1 Best on Presumptions, 18.

2 1 Green's Ev., sec, 48.

» Foster v. Steele, 3 Bing. (X. C.) 892.
* Best on Presnmptions, 50.
6 Mcech r. Smith, 7 Wend 315.
« Clark V. Dutclicr, 9 Cow. 674.

558 PRESUMrTIVE EVIDEXCE. [rULE 117.

and the parties take cum onere} So, M'hcn an agreement
inter 2)cirtes is subscribed by both the contracting parties, a
promise or covenant will be implied by one to do or per-
form that which is stated to be the consideration of the acts
expressly undertaken by the other. ^ These presumptions
are usually regarded as legal presumptions and reduced
to fixed rules, but whether they are strictly so is not mate-
rial. But presumptions of fact, which come within the
province of the jury, are said to be but mere arguments,
of which the major premise is not a rule of law, and are
to be judged by the common and received tests of the
truth of propositions and the validity of arguments.'
Presumptive evidence and the presumptions or proofs to
which it gives rise are not indebted for their probative force
to any rules of positive law ; but juries, in inferring one
fact from others which have been established, do nothinjr
more than apply, under the sanction of the law, a process
of reasoning, the force of which rests on experience and ob-
servation, and such influences are presumptions of fact."* A
promise is not, under all circumstances, implied from the
fact that a promise has been made by another party to which
that sought to be implied would be the correlative, and so
the parties placed under mutual obligations to each other." °
In Hicks v. Silliman,^ the court said: ''When certain
facts are admitted or proven, the court takes notice, with-
out further proof, of all such presumptions and inferences
arising from them a-s are warranted by uniform experience,
and also all such consequences as are known to flow from
the laws which govern matter, and which are applicable to
the proven or admitted facts. For instance, when it is shown
that the roof of a house, without gutters or other obstruc-

1 Johnson v. Underbill, decided by this court February 11, and cases cited by
Folger, J.

2 Pordage v. Cole, 1 Sandl. 319.
2 1 Greciil. Ev., sec. 44.

* Best on Pres. Ev., p. 15, sec. 14 ; Morgan v. Ravey, 6 n. & N. 205.
6 Churchward r. Coleman, L. K. 1 Q. B. 173.
« 93 111. 201 (1879).

RULE 117.] GENERAL RULES AS TO PRESUilTTIOXS. 559

tions, is sloping and projects over an adjoining building,
the court may well conclude that the drip in time of rains
will fall on such adjacent building. And the opinion of any
number of witnesses to that effect would scarcely strengthen
the conclusion. So, where it is shown that land of one
person slopes towards an adjacent tract belonging to an-
other, and the owner of the former is threatening by artifi-
cial means to o:ather the surface water from his own and
other contiguous lands in large quantities, and by means of
ditches is preparing to conduct it to a point on his own land
near the adjacent land, toward wdiich his own slopes, and
there permit it to escape, it does not require the opinions
of witnesses to establish the conclusion that if the surface
water is permitted to be thus collected and discharged, it
would certainly flow upon such adjacent land in unnatural
and undue quantities. And in such case, where it further
appears that the land upon which this undue proportion of
surface water is about to be thrown is so unusually low and
wet that it is barely susceptible of cultivation, and without
any drainage whatever, the court would be fully warranted,
without further testimony, in reaching the conclusion
that the land would be thereby injured, and the owner
entitled to redress. It is the right and duty of courts, in
determining what conclusions or results may be fairly drawn
from testimony, to avail themselves not only of their knowl-
edge and experience in the practical affairs of life, but also
of matters of science. A knowledge of physics is often
indispensable in determining what inferences shall be drawn
from an existing state of things. The laws of gravitation,
hydraulics, and mechanics are of constant application in
judicial inquiries ; and some of them may be usefully ap-
plied here."

niiistrations.

I. A boy under fourteen commits a crime. Tbe prcsumptiou that he
is legally incapable is a prcsumptiou of law.^

1 Ante, ch. XIV.

5 GO rEESOIPTIYE EVIDENCE. [rULE 117.

II. A woman in the presence of her husband robs a man. The pre-
sumption that she acted under the coercion of her husband is a presump-
tion of law.i

III. A man kills another with a deadly weapon. The presumption
that he intended his death is a presumption of law.*

IV. A letter is mailed to a party at a place where he usually receives
his letters and transacts his business. There is no presumption of law
that he received it. A presumption of fact that he did may, however, be
drawn.*

V. A. sues B. on a promissory note. It is proved that a subsequent
demand between A. and B. on the same account and arising from the
same cause has been discharged. This raises a presumption of the pay-
ment of the note. But it is a presumption of fact for the jury and not
one of law for the court.*

In case rv., it was said: '♦ The learned judge of the court
below fell into an error in affirming the first point of the
defendants that the law presumes a note mailed to the plain-
tiff at a place where he usually receives his letters and
transacts his business, was received by him by due course
of mail. A strong probability of its receipt may arise, and
as a fact, in connection with the other circumstances, it was
right to refer it to the jury. But in their hands it became
not a legal presumption binding on them as a rule of law, but
only a natural probability, as it istermed ; that is an inference
of fact of the probability of the actual receipt, by mail, of
the letter containing the note, arising from all the circum-
stances in evidence. A legal presumption is the conclusion
of law itself of the existence of one fact from others in
proof, and is binding on the jury, prima facie i\\\ disproved,
or conclusively, just as the law adopts the one or the other
as the effect of proof . The learned judge was, no doubt, mis-
led by the generality of the language of Mr. Greenleaf , in his
treatise upon Evidence, in relation to letters sent by mail.^
But the authorities cited by him for the statement, all refer

1 Ante, ch. XIV.

2 Ante, cli. XIV.

3 Tanner r. Hughes, 63 Pa. St. 289 (18C6).
< Ham V. IJarret, 28 Mo. 388 (1859).

Vol. 1, sec. 40.

RULE 117.] GENERAL RULES AS TO PRESUMPTIONS. 5G1

to notice of the dishonor of bills or non-payment of notes.
The necessity of notice of non-acceptance or non-payment,
and the inconvenience of giving it by special messenger to
those residing at a distance, led to the adoption of the
post by commercial usage which has settled into law.
Hence the remark of the hitc C. J. Gibson, in Jonp.s v.
Leiois^ that no judge has said the post-oflSce is not a legal
place of deposit when the indorser lives in the country, or
at such distance as would make the employment of a special
messenirer burdensome. But that this rule is the mere
creation of commercial usage and not the result of the gen-
eral principles of conduct which lie at the foundation of
legal conclusions, is rendered palpable by his admission in
that case that notice by de}){)sit in the post-office to one
living in the same city is insufficient. This was expressly
decided at the same time in Kraum v. McDoiveU.'^ There
is another class of cases where, by the acts of parties, the
mail is made the vehicle of their communications, as where
a proposition by mail is accepted by the same channel.
But by no law of the United States in reference to the mails,
or of the State, is the post made a legal channel of commu-
nication which a party may adopt and make compulsory
upon his correspondent. It was error, therefore, to hold
that the laia concludes that the note was received by the
plaintiff, from the mere fact of a deposit of it in a letter
mailed at a distant office, directed to him at the place where
he usually received his letters and transacted his business.
The purpose here was to show payment of the note. This
was done by the production of the note itself, without a
receipt or mark of payment or cancellation upon it, and
without any evidence of its delivery to the i)laintiff except
the deposit in the mail. Payment was, therefore, to be
proved by a double presumption at law, first, the legal pre-
sumption of. delivery from the deposit in the post-office,
and, secondly, the presumption of its return into the hands

J 8 W. & S. 15. 2 8 W. & S. 138.

30

5G2 PRESUilPTIVE EVIDEXCE. [kULE 117.

of the drawees by delivery on payment. Now, while the
facts, when all collected by the jiuy, might have satisfied
them that the note was actually in the possession of the
plaintiff, by receipt through the mail, and found its way
back into the hands of the defendants by their payment of
it ; it certainly was erroneous to instruct them that the pos-
session of the note by the plaintiff was a conclusion of law
from the fact of mailino; it to him."

In case V. it was said ; ** The instructions asked by the
defendant and refused by the court, of which complaint is
made, were properly refused, inasmuch as they required the
court to declare that to be a presumption of law w^hich
was only a presumption of fact, to be raised or not as the
Jury would determine from the circumstances in evidence.
There are presumptions of law and presumptions of fact.
The former are of a nature to exclude all contrary proof,
and which the court will not suffer the jury to disregard ;
whilst the latter are founded in experience, and may be
raised or not as the jury may determine, and for a disre-
gard of which the court grants or refuses a new trial, as
upon the evidence in all other cases of trial by jury.
Where a presumption is one of fact merely, the court is
not warranted in declaring it to the jury as a presumption
authoritatively raised by law, but should direct them that
from the evidence it is their province to determine whether
they will raise the presumption or not. The jury, looking
to the bench for the law, would naturally take it that such
a declaration was binding and left them no discretion.
"V'^licre the facts are before the jury, the presumptions or
inferences they warrant are questions purely for them.^
Where presumptions of fact founded in experience and in
the usual course of the dealings of men are not repelled
by contrary evidence they should be respected by juries,
and they have no power arbitrarily to reject them. They
must stand until they are overthrown by contrary proof.

1 Best on Presumptions, IG, 51.

RULE 117.] GEXEKAL RULES AS TO rRESUMrXIOXS. Sti3

Presumptions of payment arising against chiims for debt
alleged to remain unpaid, while subsequent demands due
on the same account and arising from the same cause are
proved or admitted to have been regularly discharged, are
presumptions of fact liable to be repelled by proof to the
contrary, and to be found to have application to a case by
a jury subject to the power in the court of granting a new
trial." It is held in California that it is error for the
court to instruct the jury that certain proof adduced raises
a presumption of fact, for this is " charging the jury with
respect to matter of fact," a thing prohibited by the con-
stitution of that State. ^

In Holmes v. Himt,"^ it was held that a statute making
the report of an auditor prima facie evidence upon such
matters as are embraced in the order to him was constitu-
tional. In an exhaustive opinion Gray, C. J., reviews the
instances of the creation of presumptions of law by the Leg-
islature. ♦' The constitutional power of the Legislature,"
snys he, "to prescribe rules of evidence is well settled.^
This power has been often exercised by the Legislature,
with the sanction of the courts, so as to chano;e the burden
of proof, or to affect the question which shall be deemed
prima facie evidence at the trial before the jury. For in-
stance the Legislature may enact that the deed of a collector
of taxes shall he prima facie evidence that the land has been
sold for non-payment of taxes at a time and in a manner
authorized by law.* So it may enact that the record of a
deed shall be evidence that it has been duly acknowledged
or proved before a magistrate without any record of the
certificate or of the proof of acknowledgment.'^ A statute
providing that a notary's protest of a promissory note

1 People V. Walden, 51 CaL 588 (1S77) ; People r. Carrillo, 54 Cal. C3 (1879) ; Stone
V. Geyser Mining Co., 52 Cal. 517 (1877).

» 122 Mass. 505.

3 Parsons, 0. J., In Kendall r. Kinsrston, 5 Mass. 524, 53t ; Washington, J., and
Marshall, 0. J., in Ogilen r. Saunders, 12 W heat. 213, 2G2, 349.

< Pillow r. Roberts, 13 How. 4T2, 476; Callaman v. Hurley, 93 U. S. 337; Hand v.
Ballon, 2 Kcrnan, 541 ; Cooley on Const. Lira. (3d ed.) 3C7, 3C8.

5 Webb V. Deun, 17 How. 576.

5G4 PEESU3IPTn'E EVIDENCE. [rULE 117.

should be evidence of the facts stated thereon has been held
by the Supreme Court of Maine to be constitutional, and
applicable to a protest made before its passage.^ By our
own statutes, the recorded certificate of two witnesses is
made sufficient evidence of an entry to foreclose a mort-
gage, and the affidavit of the mortgager himself evidence
that the requisitions of a power of sale have been complied
with.'^ Mr. Justice Story gave the fullest effect to an act of
Congress which provided that the certificate of a vice-con-
sul, that a master had refused to take a destitute seaman on
board, should he prima facie evidence in a suit against the
master for the penalty imposed on him for such refusal.'
The statutes of this Commonwealth have imposed upon the
defendant in criminal prosecutions the burden of proving
any license, appointment or authority, relied or as a justi-
fication, which the Commonwealth, but for these statutes,
would have been obliged to disprove.* Even statutes pro-
viding that in prosecutions for the unlawful sale of intoxicat-
ing liquors, delivery in or from any building or place
other than a dwelling-house, ' shall be deemed prima facie
evidence of a sale,' have been held constitutional.^ In
Goshen v. Richmond,^ it was held that the provisions of
the statutes of 1845,' reenacted in the general statutes,^ that
' the validity of a marriage shall not be questioned in the
trial of a collateral issue, on account of the insanity or
idiocy of either party, but only in a process duly instituted

1 Fales V. Wadsworth, 23 Me., 553.

= Gen. Stats., chap. 140, sees. 2, 42, 43; Hawks v. Brigham, 16 Gray, 561; Ellis v.
Drake, 8 Allen, 161, 163; Thompson v. Keriyon, 100 Mass. 108; Childs t;. Dolan, 5
Allen, 319; Field v. Gooding, 106 Mass. 310, 312.

2 U. S. St., February 23, 1803, sect. 4; U. S. Rev. Stats., sect 4578; Matthews v.
Offley, 3 Sumn., 115, 123.

« Sts. 1844, ch. 102; 1864, ch. 121; Gen. Stats., ch. 172, sec. 10; Commonwealth v.
Thurlow, 24 Pick. 374; Commonwealth v. Kelly, 10 Gush. 69; Commonwealth v.
Lahey, 8 Gray, 459; Commonwealth v. Carjieuter, 100 Mass. 204.

'•> Stats. 1852, ch. 322, sec. 12; 1855, ch. 215, sec. 34; Commonwealth v. Williams, 6
Gray, 1; Commonwealth v. Rowe, 14 Gray, 47. See, also. State v. Cunningham, 23
Conn. 195; State v. Hurley, 54 Me., 562; U. S. Stat. July 18, 1866, sec. 4; U. S. Rev.
Stats., sec. 3082.

« 4 Allen, 458.

' Chap. 222.

8 Chap. 107, sec. 2.

KULE 117.] GENERAL ItULES AS TO PRESUIMTTIOXS. 5G5

in the lifetime of both parties for determining such valid-
it}',' applied to marriages existing at the time of its pas-
sage; and Mr. Justice Metcalf, delivering the opinion of
the court, said : ' The defendants deny that it was the
intention or Avithin the power of the Legislature to
make this enactment retrospective, that is, to prohibit
the admission of evidence to show the invalidity of
previously existing marriages. But the court do not
doubt either that intention or that power of the Legislature.
That body has unquestionable authority to change the com-
mon-law rules of evidence, to prescribe the modes of proof,
and to direct who may or may not be competent witnesses.
And this authority has often been exercised. Thus, the
burden of proof, which by the common law is on one party,
has in certain cases been put by statute, on the other.
And recent statutes have so far changed the pre-existing
rules of evidence, as to make all persons (with very few
exceptions) who have sufficient understanding, competent
witnesses, not only in the trial of other's actions, but also
of their own. Those statutes have been held to render
these persons competent to testify, not only concerning
matters of w^hich they had knowledge before they were
made competent, but also in cases that were pending be-
fore.'^ The existing witness act omits the exception
(contained in the statutes in force when that opinion was
delivered) of the case in which one party to the original
contract or cause of action is dead or insane, and all other
exceptions, in civil cases, save that of private conversations
between husband and wife.- In a very recent case, it was
held by the Court of Appeals of New York, that a special
statute authorizing testimony as to the title to a certain es-
tate to be perpetuated under the direction of the court of
chancery, and making \t prima facie evidence of the facts
set forth in the examination of the witness, if the chaucel-

1 See, also, Monson v. Palmer, 8 jVllen, 551, 556.

2 St. 1870, p. 393.

566 PKESUiJPTlVE EVIDENCE [rULE 117.

lor should be of opinion that the depositions furnished good
prima facie evidence of such facts, but not giving any
adverse party the right of cross-examination, was within
the constitutional authority of the Legislature. And the
court said : ' The rules of evidence are not an exception to
the doctrine that all rules and regulations affecting reme-
dies are, at all times, subject to the modification and con-
trol by the Legislature. The changes which are enacted
from time to time may be made applicable to existing causes
of action, as the law thus changed would only prescribe the
rules for further controversies. It maybe conceded for all
the purposes of this appeal, that a law that should make
evidence conclusive, which was not so necessarily in and of
itself, and thus preclude the adverse -party from showing
the truth, would be void, as indirectly working a confisca-
tion of property, or a destruction of vested rights. But
such is not the effect of declaring any circumstance or any
evidence, however slight, prima facie proof of a fact to be
established, leaving the adverse party at liberty to rebut and
overcome it by contradictory and better evidence. That this
may be done is well settled by authority.' ^ The statutes al-
lowing every party to testify in his own behalf, even after the
death of the other party to the original contract or cause of
action , the statutes making deeds of public officers , or convey-
ances recorded at the mere request of the grantee, or ex parte
affidavits, without opportunity of cross-examination, ^Wma
facie evidence, and the statutes making particular facts
prirr.a facie evidence against defendants in criminal prose-
cutions, all appear to us to have worked greater changes in
the position of the parties at the trial before the jury, than
a statute that merely gives the effect of prima facie evi-
dence to an auditor's report, made after full hearing of
both parties, and upon a matter involving the investigation
of accounts, which can not, in the view of the Legislature
that framed the statute, and of the court that makes the

1 Howard v. Mert, (4 X. Y. 262, 268.

RULE 117.] GENERAL RULES AS TO PRESUMPTIONS.

;g7

order of reference in the particular case, be conveniently or
intelligently tried by a jury, without the assistance of a
previous examination and report by an auditor. And we
do not find anything, in the authorities cited at the bar,
that creates any doubt in our minds upon this subject. In
Uiiiled /States v. Rathbone,^ the only point decided was
that the constitution and laws of the United States did not
authorize a Federal court, sitting in the State of New York,
to order a case to be referred to arbitration, in accordance
with a statute of that State. Mr. Justice Thompson said:
' How far this view of the case may affect the validity of
State law is a point not drawn in question, or intended to
be considered.' - And the constitutionality of that statute
has since been affirmed by the Supreme Court of that State. ^
IwFUmipion v. Somerset,'^ avuX Copp v. Ilanniker ,^ ixciiows
for damages for defects in highways, not involving any in-
vestigation of accounts, had been referred to commission-
ers or referees, under statutes that provided that their
reports should be prima fade evidence upon a subsequent
trial before a jury. The decision of a majority of the court
in Plimpton v. Somerset, that such a statute, as applied to
such a case, was unconstitutional, could not be extended to
the case of an account, consistently with the previous de-
cisions of the same court in Broioii v. Kimball,^ and Stod-
dard V. Chapin. In Uobb v. Ilanniher,'' the court held
the provision for the appointment of a refei'ee to be valid,
and did not decide upon the validity of that part of the
statute which provided that his report should be evidence
upon a trial before a jury; and the only judge, who made
any remarks upon that point, said in regard to the auditor
law of New Hampshire of 1823, which was copied from our

1 2 rainc, 573.

2 2 Paine, 583.

s Lee V. TUlotson, 24 Wend. 337.
* 33 Vt. 283.
» 55 N. U. 179.
« 12 Vt. 617.
1 15 Vt. 413.

T)QS PRESmiPTIVE EVIDENCE. [kULE 117.

statute of 1817 : ' The validity of an act, which has been
in such extensive operation and universally acquiesced in
for fifty years, will probably not be questioned.' ^ The
constitutionality of the New Hampshire statute of 1823 has
since, upon elaborate consideration, been fully established.^
In King v. Hopkins,^ which was an action on the case
for flowing the plaintiff 's land, it w^as decided that the pro-
vision which made the report of referees evidence at the
trial before the jury was unconstitutional. But the weight
of that decision as an authority is greatly impaired, to say
the least, by the fact that it was made, under the peculiar
judicial system existing at the time in that State, by one
justice of the Supreme Court of Judicature, and one judge
of the Circuit Court, against the dissent of the chief justice
of the Superior Court, and reversing the ruling of the third
justice of the Superior Court, who presided at the trial ;
so that the final result was against the opinion of a majority
of the judges of the highest court of the State. And we
are not now required to pass upon the validity of such a
provision, as applied to a case which does not call for the
investigation of accounts, but presents a simple issue of
fact or damages, suitable for the determination of a jury in
the first instance. The only case cited by the learned coun-
sel for the defendant, which supports his position, is Fran-
cis V. Baker, recently decided by the Supreme Court of
Ehode Island, in which a statute, substantially correspond-
infy to our own, was held unconstitutional, as impairing the
rif^ht to trial by jury. The respect due to a decision of the
highest court of a neighboring State, and the ability of the
arirument which has been addressed to us, have induced us
to treat the matter at more length than we should otherwise
have thought necessary ; but after full consideration, we
are unanimously of opinion that neither that decision, nor
the reasons assigned in support of it, are sufficient to justify

1 55 N. H. 209.

2 Doyle V. Doyle, 56 N. n. 567; Perkins v. Scott, 57 N. II. 65.
8 57 X. H. 334.

RULE 118.] GENERAL RULES AS TO PRESUMRTIONS. 5G9

US in overturning the law of this Common'.vcalt , as estab-
lished, upon Avhat appears to us to l)e firm foundations, by
the practice of more than half a century."

RULE lis. — A presumption iniist be ba.se<l upon a fact,i
and not upon iuference or upon another presump-
tion.^

Illustrations.

I. A. sues B. for deceit in fraudulently representing the value of the
property of a corporation and inducing him to purchase stock therein.
The articles of association containing these false statements were filed
of record as required by law. There is no evidence of fraudulent rep-
Fesentations made to A. inducing him to purchase the stock. It can not
be pi'esumed that A. saw these articles and was induced to purchase
relying on the statements therein contained.^

II. B. asks to be discharged from custody on a habeas corpus because
the grand jury has found no indictment against him. It only appears
that a term of court has passed since B.'s imprisonment. The law will
presume that court was held and a grand jury impaneled according to
law. But there is no presumption that the grand jury heard evidence in
B.'s case.*

III. The question was whether there was any other property on
which to levy an execution except a certain negro boy. It was proved
that the sheriff had levied only on the negro boy. From this alone it
could not be presumed that there was no more property.^

IV. A contract between an agent and an insurance company provides,
as a part of his compensation, that he shall receive a certain commission
on all premiums paid on renewals of policies as well as when they are first
taken. Being discharged by the company he brings suit and claims that
since his discharge there have been renewals of policies taken by him on
which he is entitled to commissions. There is no proof that any policies
liave been renewed or premiums paid. This can not be presumed.*

V. It is sought to be shown that the driver of a street car which ran
over and injured a child was negligent. It is proved that the drivers on

1 Richmond v. Aiken, 25 Vt. 324 (1853); Doolittle r. nolton, 26 Vt. 5SS (1S54);
Brunswick r. McKcan, 4 Me. 50S (1827) ; Kllis v. Ellis, 58 Iowa, 720 (1SS2).

- Douglass t". Mitchell, 35 Pa. St. 440 (1860). "Presumptions must always rest
upon acknowlccigod or well established facts, aud not upon prusumptiout;." Kich
mond V. Aiken, 25 Vt. 326 (1853).

••« McAlcer v. .McMurray, 58 Pa. St. 126 (1863).

« People V. Ilessing, 23 HI. 410 (1S02).

<• Pennington r. Yell, U Ark. 236 (1850) ; and sec U. S. r. Ross, P2 U. S. 2S3 (1S75>.

6 Manning v. lasuianco Co., 100 U. S. 093 (1879) ; 'Wheelton v. Ilardesty, 8 El. &
Bl. 232 (1857).

570 PRESU31PTIVE EVIDENCE. [rULE 118.

the line arc allowed only a limited time for rest and sleep. The pre-
sumption can not arise that the driver was negligent. It is proved that
the driver was asleep at the time. The presumption arises that he was
negligent. 1

VI. A. claims certain property as his — e.g., a negro boy — from B.
B. obtained the property by purchase at an execution sale of the prop-
erty of C. The question is whether A.'s presence at the sale raises a
presumption of his acquiescence so as to estop him. It would if A. is
proved to have been present. It would not if it is only proved that A.
was near by at the time.^

" Xot a word of testimony," it was said in case I.,
" appears to have been given by the plaintiff to show that
he was induced to purchase any stock in the company by
direct representations, true or untrue, by any person. This
essential was attempted to be supplied by presumptions :
one to stand as a postulate, and another as the inference.
This is not admissible. I can not well conceive of a case
where a presumption of fact can ever be drawn from pre-
sumptions of the same kind. The practical operation of
the theory in this particular is that it is to be presumed
that the plaintiff must have seen and inspected the certifi-
cate of organization of the company, either in the auditor
general's or recorder'soffice, and by its false presentation he
is presumed to have been induced to purchase the stock in
question. Neither one nor the other of these propositions
asserts a natural or even probable result. They are not
such presumptions as to induce the belief that it would be
most likely that the plaintiff would examine the certificate
before purchasing. That would depend on many things —
nmonirst others the business habits of the man, and his con-
venient opportunity. The paper itself, if seen, would
hardly, if in proper form, have held out any very peculiarly
lively inducements to buy. A much greater probability is
that the plaintiff purchased the oil stocks because such
stocks were ju.st then in great demand."

In case II. it was said: "The record fails to show that

1 Philadelphia City Passenger R. Co. v. Henrice, 92 Pa. St. 431 (18S0).

2 Danlcy v. Rector, 10 Arii. 311; 50 Am. Dec. 242 (1849).

RULE 118.] GENERAL RULES AS TO rKESUMrXIONS . 571

the grand jury heard evidence or acted upon the accusation
af^ainst him. Tiie allegation that such action was had by
that body was not proved. The law will not presume that
the evidence was heard and that they ignored a bill.
Although it may be a legal pre;?umption that a court was
held at the time fixed by law and a grand jury was regu-
larly impaneled, still it will not be presumed that they
acted upon a particular case."

In case III. it was said : " There was an effort to raise a
presumption upon a presumption. The presumption that
there was no more property is based upon the presumption
that the sheriff did his duty. That is to say, it was his
duty to levy the whole debt if there was sufficient property
in his county; as he did not levy the whole debt — ergo^
then there was no more property in his county. Now, the
law will not presume on such a basis as this. Legal pre-
sumptions must be based upon facts and not upon presump-
tions."

In case rv. it was said: ** The defendant might have
resorted to a subpoena duces tecum ^ or to an order of the
court to produce papers and books, or, perhaps, to a bill of
discovery. He did neither. He simply proved as a fact,
that there were life policies in existence, secured through
his agency, renewal premiums upon which fell due before
the suit was brought. His evidence stopped there, and he
now complains that the jury was not allowed to presume
from that fact that the renewal premiums had been paid to
the plaiutift', and to presume it against a party who was not
in the wrong, a party who had rightfully dismissed him
from his agency, and who was under no obligation to col-
lect the premiums at all. But was that a conclusion which
the jury should have been permitted to draw from the fact
proved? It is error to submit to a jury to find a fact of
which there is no competent evidence. From the fact that
a debt existed, it does not follow as a necessary or even
reasonable sequence that it has been paid. Kor is there
any presumption of its payment upon which a jury can

572 PRESUMPTIVE EVIDENCE. [kULE 118.

act. Certfiinly none until after the lapse of twenty years.
Much less can such a presumption arise in regard to the
pa^'ment of renewal premiums upon policies of insurance,
such premiums not being debts due to the insurers, and not
being collectible as debts. We do not question that a jury
may be allowed to presume the existence of a fact in some
cases from the existence of other facts which have been
proved. But the presumed fact must have an immediate
connection with, or relation to, the established fact from
which it is inferred. If it has not it is regarded as too
remote. The only presumptions of fact which the law
recognizes are immediate inferences from facts proved.
Remarking upon this subject in United States v. Hoss,^ we
said : ' Whenever circumstantial evidence is relied upon to
prove a fact, the circumstances must be proved, and not
themselves be presumed.' Referring to the rule laid down
in Starkie on Evidence,^ we added : * It is upon this prin-
ciple that courts are daily called upon to exclude evidence
as too remote for the consideration of the jury. The law
requires an open and visible connection between the prin-
cipal or evidentiary facts and the deductions from them,
and does not permit a decision to be made on remote infer-
ences.^ A presumption which a jury may make is not a
circumstance in proof, and it is not, therefore, a legitimate
foundation for a presumption. There is no open and visible
connection between the fact out of which the first presump-
tion arises and the fact sought to be established by the
dependant presumption.* If these principles be applied to
the present case, the inadmissibility of the presumption
which the defendant contends the court should have per-
mitted the jury to draw becomes apparent. That renewal
premiums to a certain amount upon which he was entitled
commission, had been paid to the company was the ulti-

1 92 U. S. 281, 284.

2 p. 80.

3 Best on Ev. 95.

* Douglass V. Mitchell, 53 Pa. St. 410.

RULE 118.] GENERAL RULES AS TO rRESUMFTIONS. 573

mate fact which was ncccssaiy to be proved. What the
evidence did prove was, that there were policies in lorce on
the 2d of June, 1871, the annual premiums upon which
were $87,000; that he would be entitled to commissions
upon renewals of the policies, if they should be thereafter
renewed, and if the renewal premiums should be paid to
the company, and that these premiums were to be collected
by his sub-apjents and paid over by them. These were the
primary facts. Everything more was left to presumption.
The jury, therefore, were to presume that the policies did
not lapse, and that they were renewed. Built on this pre-
sumption was another, namely, that the renewal premiums
were paid to the agents ; and upon this a further presump-
tion, that the premiums had been paid over by the agents
to the company, or had been immediately collected by it.
This appears to us to have been quite inadmissible. A
verdict of a jury found upon such evidence would have
been a mere guess."

In case V. it was said: "The fact to be proved was
whether the driver of car No. 127 had been guilty of negli-
gence upon the occasion in question, in consequence of
which the child, Charles Ilenrice, had been run over and
injured. Was the evidence objected to of such a character
as tended to prove this fact ? It was undoubtedly compe-
tent to prove the condition of the driver at the time the
accident occurred; that he was intoxicated, or absent, or
for any other reason incompetent to attend to his duties.^
These were specific matters which might have been proved;
but how the fact that other drivers and other conductors
were allowed only a certain number of hours for sleep and
rest could affect the question of this particular driver upon
this particular occasion is not apparent. It is easy to see,
however, how such evidence might seriously intiuence the
jury and increase the damages. When a fact is established

Pennsylvania Railroatl Co. r. Docks, 7 V. F. Smith, 339; Mansfield Coal and Coke
Co. V. McEucry, 10 Morris, ISJ.

Or

PRESOITTIVE EVIDENCE. [rULE 118.

in a cause by evidence we may properly be allowed to draw
therefrom such inferences as are logically deducible from
it. Thus if it be shown that the driver was asleep or
intoxicated at the time of the accident, a presumption of
neo-lio-ence would properly arise. But the fact from which
such inference is to be drawn must first be established. It
will not do to presume that he was in the condition referred
to from some remote fact in no way connected with the
case, and upon this presumption base the additional pre-
sumption of his negligence. This would be to found a
presumption upon a presumption which is never allowed.
A presumption should always be based upon a fact, and
should be a reasonable and natural deduction from such
fact. The true rule was correctly stated by Mr. Justice
Thompson in Douglass v. MitcheWs Executors:'^ * That as
proof of a fact, the law permits inferences from other facts,
but does not allow presumptions of fact from presumptions.
A fact being established, other facts may be, and are often
ascertained by just inferences. Not so with a mere pre-
sumption of a fact ; no presumption can with safety be
drawn from a presumption ; there being no fixed or ascer-
tained fact from which an inference of fact might be
drawn, none is drawn.' What has been said applies to the
charge of the court embraced in the fourth assignment, as
well as to the offers of evidence. There was no evidence
that the driver of car No. 127 was in any way rendered
incompetent to perform his duties in a proper and careful
manner by reason of the severity of his labors or the loss
of rest and sleep. In the absence of such evidence we
have but a mere presumption, and upon this it was not
competent to construct the further presumption of his ueg-
liofcnce."

In case VI. it was said : " It remains to be seen whether
the plaintiff in this case was in fact present at the time the
slave in suit was set up and sold : for until he is proven

1 11 Casey, 443.

RULE 118.] GENERAL RULES AS TO PRESCMPTIOXS. 575

positively to have been present at the time of the sale no
presumption of fraud arises wliich could affect him even in
a court of equity. It is a rule of evidence which lies at the
foundation of all presumptive evidence or deduction from
facts that the facts themselves from which these presump-
tions arise must be clearly and satisfactorily proven. For,
if such were not the case, it would be but raising presump-
tion upon presumption, whereas the very existence of pre-
sumption depends upon their usual and necessary connection
with known facts. It is by the application of this rule that
a tliird person who is present when property to which he has
claim, is offered for sale, and Avho stands by in silence and
suffers an innocent purchaser to pay his money for it, is
chargeable with fraud. When it is clearly proven that he
was present at the time of the sale, and so situated that ho
must have been advised of the fact that his property was
about being sold and he remains silent, a presumption of
intention to defraud the purchaser arises and attaches to
his conduct. But then in order to raise this presumption,
it must be first positively proven that he was present at the
very time the sale of that particular property took place.
When these rules are applied to the evidence in this case it
will be found that there is no positive proof that the plain-
tiff was present when this particular slave was sold. Most
of the witnesses have no positive recollection that he was
there at any time, but are of the impression that he was.
One witness only, says he was there certainly. That wit-
ness says: * I do not know whether plaintiff was present
when the negro sued for was sold or not, but I saw him
when the sheriff was selling, some time during the progress
of the sale of the negroes under execution against my
father. They were some time selling the whole lot of
negroes, — some nine or ten in number.' Therefore,
under no state of the case can the plaintiff be aifected by
this principle, as the proof fails to establish the fact of his
presence at the time of the sale of the boy in suit."

57G rKESUMPTIYE EVIDENCE. [RULE 120.

KUIiE 119. — A presumption can not conti-adict facts or
overcome facts proved.

<'They have no place for consideration Tvhen the evi-
dence is disclosed or the averment is made. When, there-
fore, the record states the evidence or makes an averment
vrith reference to a jurisdictional fact, it will be understood
to speak the truth on that point, and it will not be pre-
sumed that there was other or different evidence respecting
the facts or that the fact was otherwise than as averred.
If, for example, it appears from the return of the officer or
the proof of service contained in the record that the sum-
mons was served at a particular place, and there is no aver-
ment of any other service, it will not be presumed that
service was also made at another and different place ; or if
it appears in like manner that the service was made upon a
person other than the defendant, it will not be presumed,
in the silence of the record, that it was made upon the
defendant also. Were not this so, it would never be pos-
sible to attack collaterally the judgment of a superior
court, although a want of jurisdiction might be apparent
upon its face ; the answer to the attack would always be,
that notwithstanding the evidence or the averment, the
necessary facts to support the judgment are presumed."^

RULE 120. — A rebuttable presumption of law being
contested by proof of facts showing otlierwise, wbicli
are denied, the presumption loses its value, unless the
evidence is equal on both sides, in which case it
should turn the scale.

In Graves Y, ColweW^ it was said: *' The plaintiff made
out a prima facie case by availing himself of the presump-

1 Galpin v. Page, 18 Wall. 364 (1873). Presumptions of fact are not binding on a
jury. Hamilton v. People, 29 Mich. 193 (1874). Presumptions stand only till they are
overcome by facts. Whitaker v. Morrison, 44 Am. Dec. 627 (1S4G) ; Van Burenr-
Cockburn, 14 Barb. 122 (1852). " The evidence to support a natural presumption of
a fact must be such as to lead the mind to a conscientious belief of its existence
beyond a reasonable doubt." Uuntv. Hunt, 3 Mete. 175; 37 Am. Dec. 130 (1841).

2 90111. 615(1878).

EULE 120.] GENEKAL RULES AS TO PKESUMPTIOXS. 577

tion of law that the father and not the son was intended hy
the deed from French.^ It then devolved on defendants to
introduce evidence safEcient to rebut this legal presump-
tion, and, as they did so, they would have been entitled to
a verdict if the case had stood still there. The case of the
defendants, as disclosed by their testimony, considered in
and of itself, rebutted the legal presumption, and thereby
the onus was shifted back to plaintiff, and he was bound to
produce proofs sufficient to overcome, or at least equal in
probative force, the case of the defendant. Plaintiff did
introduce certain rebutting evidence, and, he having done
so, the verdict of the jury should have been in conformity
with the preponderance of evidence on the whole case. If
the testimony of defendants was of greater probative force
than the rebutting evidence of plaintiff added to the proba-
tive value of the legal presumption, then the verdict should
have been for them. If the evidence in the concrete case,
including the evidential weight of the presumption of law,
was in equilibrium, then the plaintiff might still have
availed himself of the presumption of law, as an arbi-
trary rule of law, and been entitled to recover. It has
been said that the presumptions of law derive their
force from jurisprudence and not from logic, and that
such presumptions are arbitrary in their application. This
is true of irrebuttable presumptions, and, primarily, of
such as are rebuttable. It is true of the latter until the
presumption has been overcome by proofs and the bur-
den shifted ; but when this has been done, then the con-
flicting evidence on the question of fact is to be Aveighed
and the verdict rendered, in civil cases, in favor of the
party whose proofs have most weight, and in this latter
process the presumption of law loses all that it had of mere
arbitrary power, and must necessarily be regarded only
from the standpoint of logic and reason, and valued and

1 Lcpiot t'. Browne, 6 Mod. Rep. IDS; Kincntd v. Ilowe, 10 Mass. 203; Padgett v.
Lawi'cnce, 10 Paige. 170; Stale r. Vittum.O X. H. 519; 2 Whartou's Ev., sec. 1273.

37

578 PEESUMrTivE EyIDE^'CE. [rule 120.

given effect only as it has evidential character. Primarily,
the rebuttable legal presumption affects only the burden of
proof, but if that burden is shifted back upon the party
from whom it first lifted it, then the presumption is of
value only as it has probative force, except it be that on
the entire case the evidence is equally balanced, in which
event the arbitrary power of the presumption of law would
settle the issue in favor of the proponent of the presump-
tion. Regarded in its evidential aspect, a given presump-
tion of law may have either more or less of jDrobative value,
dependent upon the character of the presumption itself,
and upon the circumstances of the particular case in which
the issue may arise. Some legal presumptions are more
probable and inherently stronger than others. So, also,
differing circumstances may give differing degrees of prob-
ability to one and the same legal presumption. A prom-
issory note is made to A. B., and it turns out there are two
persons of that name in the community, — a father and son.
The question of identity arises, and primarily, as fixing the
burden of proof, the law says it is presumed the father was
intended. Thus far the presumption is judicial and arbi-
trary. An issue is formed, and the son establishes, 'prima
facie, that he and not the father was indicated, and the
father then offers rebutting evidence. Now this issue, thus
made, is to be determined by the weight of evidence, and
upon the whole case, and in determining such issue the pre-
sumption has lost (unless there be an equilibrium) its
merely arbitrary character, and is entitled only to its
loo^ical value. If A. B., the son, was at the date of the
transaction involved in the controversy, a mere infant of
tender years, wholly unacquainted with business affairs, and
the father was engaged in the active pursuits of life, the
probability that the father was meant is very great, and the
legal presumption would have much more of probative
force than it would have in a case where the son was a
mature man and in active business, and the father aged and
retired from business,"

KULE 121.] GENERAL RULES AS TO TKESUMPTIONS. 579

RULE 121. — And a presumption is neither continuous
(A) nor retroactive (B).

Illustrations.

I. A. brings an action against B. for enticing his minor son to enlist
in tJie array. Tlie question is as to tlie measure of damages, wiietlier A.
can recover for the loss of service until tlie end of his son's term (i.e.,
three years or the end of the war, which at the time is raging), or only
to the time of the trial. Held, the latter, as the law can not presume
that the war will coutiuue to exist for three years or for any period.^

II. In a suit for divorce it is shown that certain letters were written
by the wife to a witness, three of them containing confessions of adul-
tery. These letters were destroyed, while two subsequently received
were handed to the custody of a third person. Held, that there was no
presumption that these last letters were written on the same subject or
contained similar confessions. 2

«' The enlistment," it was said in case I., ** was to end
witli the war, and the hiw will not presume in such a case
that the war will continue three years. The law presumes
that a fact continuous in its character still continues to
exist until a change is shown, and so a state of war proved
to exist three years ago is presumed in law to be still exist-
ing, unless the contrary be shown, but the law indulges no
presumption at the present time that it will continue three
years longer. On the contrary war is not the normal, but
an exceptional state of society, and is generally regarded
as a thing not to be desired either by individuals or nations.
Peace is desirable and not war, and the presumption is that
men and nations will do that which is for their interest* and
act with reference to them. The law, however, will not
indulge in any presumption in regard to a future condition
of war or peace. God alone knows what the future has
in store for nations, and finite courts, whose visions can not
penetrate the future, should not speculate as to its proba-
bilities, much less attempt to solve them and make them the

1 Covert f. Gray, 34 Hoi*. Pr. 450 (1860).

2 Strong V. Strong, 1 Abb. Pr. (N. 8.) 238 (1665.)

580 PEESU3IPTIVE EVIDENCE. [eULE 121.

basis of their jiulgment. The rule is reasonable which pre-
sumes the continuance of an existing fact at the time of
the trial, for the other party can overthrow it by proof if
it be not so ; but when it presumes a future continuance the
party has no ability to unfold the future and give an answer
by his proof."

In case II. it was said : * ' It was presumed that such let-
ters, being part of a series as they are called, must have
related to the same subject. I know of no principle upon
which every friendly letter between the same parties is to
be presumed in law to continue to advert to some one sub-
ject, or that confessions of guilt on that subject may be
supposed to be reiterated or protestations of innocence
inserted in every one ; every thing is some time or other
brought to an end, and every subject is sometimes absent
from our thoughts or writino;s. Even a friend does not
always continue to be confessor, and there is no experience
of mankind which warrants the conclusion adopted in this
case."

B.

I. A deed is signed in 1854 by Henrietta C, her maiden name. There
is evidence that in 18G0 she was known as Mrs. D. There is no presump-
tion that she was married in 1854.1

II. Harriet G. executes a deed in 1854. The question is whether stib
was married at the time. There is evidence that she was tlien over
twenty-flve years old. This raises no presumption that she was then
married. 2

III. Depositions out of the State are allowed to be taken before " any
judge or justice of the peace." A commission is issued to Texas; depo-
sitions are taken before one B. on June 6, 1848; and it is officially certi-
fied on June 20th that B. is a justice of the peace. There is no presump-
tion from this that B. held that office on June 5th.'

IV. A. made a contract in 1800. In 18G4 he was insane. There is
no presumption that he was insane in 18G0.*

1 Erskine v. Davis, 25 Ul. 251 (1861).

* Erskine v. Uavis, 25 111. 251 (18G1).

» Carieh v. Lytle, 4 La. .\nn. .'557 (1849).

* Taylor v. CressweU, 45 Md. 422.

Rule 146.] general rules as to rRESUMPrioxs. 581

V. M. committed a burglary in 1880 in the house of J. In 1881, M.
was tried and it appeared on the trial that J. was married. This raises
no presumption that J. was married at the time of the burglary.^

" The presumption of coverture," it was said in case I.,
*' is prospective not retrospective. If we siiall presume
for the purpose of avoiding the deed executed by her in
her maiden name, that she was married six years before we
have any evidence that she was married at all, we might
with the same propriety presume that she had been married
sixteen years. Such is not the law."

In case III. it was said : ' ' When the existence of a subject-
matter or relation has been established, its continuance
may be presumed. But here we are called upon to pre-
sume from the fact that a person was qualified to act as a
justice at a particular date, that he was qualified so to act
at a period anterior to that date. Such a presumption is
not supported by reason or authority." In maritime law,
a different rule seems to prevail. Thus a ship soon after
leaving port becomes so leaky and disabled as to be unable
to proceed. There is no evidence that she encountered any
great storm or peril of the sea. The presumption is that
she was unseaworthy when she sailed." ^

In case V. it was said: *' When the existence of a per-
sonal relation or a state of things continuous in its nature
is once established by proof, the law presumes that such
status continues to exist as before, until the contrary is
proved, or until a different presumption is raised from the
nature of the subject in question. But this presumption
can not be permitted to operate retrospectively, so as to
infer the prior existence of coverture or other like relation-
ship from proof of its present existence. It may l)e that
the party contracted the relationship within a few days be-
fore the trial."

Murdoch v. State. 63 Ala. 567 (ISSl).
> Wright V Orient Ina. Co., 6 Bosw. 270 (1860) ; 1 Amonld on Ins. 6S6, sec. 255.

582 PRESUMPTIVE EVIDENCE. [rULE 122.

litXE 122. — In tlic case of conflicting presumptions tbe
presumption of payment is stronger than, and will
prevail against, the presumption of continuance (A) ;
the presumption of innocence is stronger than, and
will prevail against, the presumption of payment (B),
of the continuance of life (C), of the continuance of
things generally (D), of marriage (E), and of chastity
(F) ; the presumption of knowledge of the law is
stronger than, and will prevail over, the presumption
of innocence (G), and the presumption of sanity is
stronger than, and will prevail over, the presumption,
of innocence (H).

Illustrations.

A.

I. See Illustration (B.)

B.

I. An action is brought on an administrator's bond to compel him to
account for and pay over the amount of a private debt due from him to
the intestate. Twenty-four years have elapsed since the bond was given.
There is no proof of a decree of distribution ordering him to pay to the
heirs. Therefore the presumption of payment and the presumption of
innocence (arising from the fact that he would have violated his duty in
paying without a decree) conflict, and the latter must prevail. ^

In case I. it was said: '• It has been farther contended
that the facts furnished a legal ground on which the jury
might have presumed that the defendant had paid or ac-
counted to the heirs of the intestate for the amount of the
notes without the formality of any proceeding in the pro-
bate court by way of a settled account and a decree
thereon, and that the judge should have left this question
to the jury. The obvious reply to this objection and argu-
ment, is that the law does not presume that an administrator
does wrong; it does not presume that the defendant did

1 Potter V. Titcomb, 7 Me. 303 (1831).

RULE 122.] GENERAL IIULES AS TO rRESL^IPTIONS . 583

what by law he had no right to do, that is that he had made
an unautiiorized payment to the heirs under the circum-
stances mentioned. He was bound to account to the judge
of. probate, and ho had no right to pay the heirs but under
decree. To presume it would be to presume against law
and right. Wo do not mean to say that had there been
proof that the amount of the notes had been actually
apportioned, and paid to the several heirs, though without
a decree of the Probate Court, it might not, in a hearing in
chancery, be a bar to an execution for anything beyond
nominal damages. It would be as strange to sanction the
presumption where mentioned as that which was relied upon
in another part of the argument to prove that the intestate
had forgiven the debt due on the notes. Wrongs and gifts
are not to bo presumed ; they must be proved."

♦'Nothing can be clearer than this/' says Mr. Justice
Heath in an old case,^ ♦* a presumption may be rebutted by
a contrary and stronger presumption."

C.

I. Mary B. married W., who afterwards enlisted and went on a foreign
service aud was never heard of afterwards ; twelve months after his de-
parture she married B. Held, that the issue of B. would be presumed
legitimate. 2

II. Title was claimed through A. aud B., his wife; it was proved that
B. had been married to C, who was dead, aud that she had had three
husbands before she married A.; the presumption was that these hus-
bands were dead before she married A.»

In case I. the conflicting presumptions were the presump-
tion of innocence aud the presumption of the continuance
of life. " If," said the court. ♦' W. was alive at the time

1 Jayno r. Price, 6 Taunt. 326 (181i).

2 King f. InhabiCints of Gloucestershire, 2 Barn. A Aid. .?S6 (1819) ; Lockhartr.
White, 13 Tex. lOi (1S56) ; Sharp r. Johnson, 2-2 Ark. 7'.» (IfSGO) ; Grccnsborough p.
Underbill, 12 Vt. 604 (1939); Cameron r. Stato, 14 Ala. 54(5; 48 Am. Dec. Ill (K'^48) ;
Chapman v. Cooper, 5 Rich. (L.) 452 (1S52) ; Tales v. Houston. 3 Tex. 442 (1S4S) ;
People r. Fcilen, 53 Cal. 218(1831); Hull v. State, 7 Tex. App. 693 (1830) ; Murray
V. Murray, 6 Ore. 18 (1S76).

8 B.eiden v. Faff, 12 S. & R. (Pa.) 430 (1825).

584 PEESU3IPTIVE EVIDE^XE. [rule 122.

of the second marriage, it was illegal and she was guilty of
bigamy. If she had been indicted for bigamy, it would
clearly not be suiEcient. In that case, W. must have been
proved to have been alive at the time of the second mar-
riafj-e. It is contended that his death ou^ht 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," ^

In case II. it was said: "In an old transaction like this,
the fact of a second marriage is of itself some evidence of
the death of the former husband. There are sometimes
cases where it is unavoidably necessary to decide on the
existence of facts without a particle of evidence on either
side, and if a decision in a particular way would implicate a
party to a transaction in the commission of a crime or any
offense against good morals, it ought to be avoided, for the
law will not gratuitously impute crime to any one, the pre-
sumption being in favor of innocence till guilt appear."

In a Massachusetts case it was said : *' The presumption
of the wife's innocence in marrying again might well over-
come any presumption that a man not heard from for four
years before the second marriage or for sixteen years after-

1 The case which is often cited in connection with King «. Inhabitants ol Glou-
cesteriihire, is King v. Inhabitants of Harborne, 2 Ad. &. E. 540 (1835). There it
appeared that one Ann Smith had, on April 11, 1831, been married to one Henry
Smith, who deserted her. Smith had been previously married in October, 1821, to
another female, with whom he lived until 1825, when he left her. But several letters
had been received from her from Van Dieman's Land, one. of which bore date only
twenty-five days previous to the second marriage. The court held that the pre-
Bumption was that the first wife was living at the time of the second marriage. The
decision in this case is evidently based on the very short time which transpired
between the time when the first Avife was shown to be alive and the date of the
eecond marriage. And see Lapsley v. Grierson, 1 II. L. Cas. 500 (1818). In Yates a.
Houston, 3 Tex. 433 (1848), where four years had elapsed since the former wife had
been heard from, it was held that her death would be presumed to validate a subse-
quent marriage. And see Lockhart v. White, 18 Tex. 102 (1856). In Wilkic v. Collins,
48Mi68. 496 (1873), a husband left his home in Mississippi on October 30, 1850, and
went to Louisiana on business, where he was last heard from by letter to his wife,
Kovember 30, 1859, announcing that he was then sick in bed, and would return aa
Boon as he was able to travel. He was of habitual delicate health, and his domestic
relativ^ne had always been most agreeable. It was the belief of his family that ho
was dead, and on December 22, 1861, his wife married again. It was held that the
husband would be presumed to haye been dead at that time. And see Chapman v.
Cooper, 5 Kich. (S. C.) L. 453 (1852).

RULE 122.] GENERAL RULES AS TO PRESUMPTIONS. 585

wards was alive and her lawful huaband when she married
the second time." ^

D.

I. A. and B., as husband and wife, sue C. for slander; they prove their
marriage, but C. proves dccluratious of the wife tliat she had been mar-
ried in Germany to another man. It will be presumed that the previous
marriage has been dissolved by death or divorce. ^

II. A. threatens to kill B.; some time after, B. kills A. There is no
presumption that A.'s iuteution continued to that time.*

III. A. was indicted for illegally selling liquor; it was proved that
it was sold, in his absence, by his clerk. The fact that the clerk had
previously made similar sales, which A. had approved, does not raise the
presumption that the last sale was with his consent.*

IV. A bankrupt in 1837, makes a scheduled return of his property. It
is afterward discovered that in 1835 he owned certain property which
was not included in the schedule. There is no presumption that he
owned this property in 1837, for the presumption is that he did not com-
mit a fraud. ^

In case I. it was said : ** There was no presumption that a
marriage Avhich was proved to have existed at one time in
Germany continued to exist here after positive proof of a
second marriage de facto here. The presumption of law is
that the conduct of parties is in conformity to law until the
contrary is shown. That a fact continuous in its nature
will be presumed to continue after its existence is once
shown is a presumption which ought not to be allowed to
overthrow another presumption, of equal, if not greater
force, in favor of innocence. * * * There was not
any evidence that the first husband of Mrs. K. was still liv-
ing, but if this had been established we think she was still
entitled to the benetitof the favorable presumption that the
first marriage had been dissolved by a divorce."

1 Kelley r. Drew, 19 AHcn, 107 (1866).
« Klein V. Lamlman, 29 Mo. 259 (1860).
» Stiito V. Brown, G4 Mo. r.iiT (1S77).
< Patterson r. S ate, '21 Al.i. 571 (1852).
6 PoweU V. Kuox, 16 Ala. Cai (1S49).

586 PEESU3IPTIVE EYIDEXCE. [rULE 122.

In case III. it was said : " "We have no right to conclude
that because he has sanctioned previous violations of the
law he will continue to do so ; on the contrary, as every
party is to be presumed innocent until his guilt is made
manifest, we should presume that he repented his former
transgression, and therefore did not assent to the subse-
quent violation."

Where the acts grow out of the illicit relations of the
sexes, this rule does not appear to hold good, as the fol-
lowing illustrations will show : —

Illustrations.

I. A. and B. are indicted for living together in adultery; the jury are
Instructed that where criminal intercourse is once proved it will be pre-
sumed, if the parties live under the same roof, to still continue. Held,
correct .1

II. B. and C. live together, the latter as B.'s mistress; B. diej. That
a marriage took place between them before his death will not be pre-
sumed.^

It has been said that while much will be presumed in
favor of a marriage, after the removal of a barrier between
parties who have been prevented from contracting it by a
legal obstacle, no such presumption will arise where the par-
ties were originally at liberty to form a legal or illegal
union as they perf erred. In such a case, having originally
elected the criminal in preference to the lawful relation-
ship, they must bo presumed to have continued therein
until some change of intention and wishes is affirmatively
shown.^ This distinction renders such cases as those in the
above illustration completely in harmony with cases like
Wilkinson Y.Po.yne, and others, noted under previous rules.
In Wilkinson v. Payne,'^ an infant contracted a void mar-
riage and lived with his wife until her death, which occurred

1 Carotti v. State, 42 Miss. 334 (1868).

2 Floyd V. Calvert, .5?, Miss. 46 (1876).
« Floyd V. Calvert, 53 Miss. 46 (1876).
* 4 T. E. 468.

RULE 122.] GENERAL RULES AS TO PRESL^ITTIONS. 587

only three weeks after he attained a legal age to marry,
and it appeared that during tlie whole of that time she was
on her death-bed. It was nevertheless held that a marriage
would be presumed. The bar being removed, the presump-
tion was in favor of innocence.

E.

I. A presumption of marriage arises from cohabitation; M. and Y.
were proved to have lived tojictlier aud cohabited; Y. afterwards mar-
ried S. The presumption that Y. did not commit bigamy prevails over
he presumption that M. and Y. were married. ^

II. In 1840, marriages between whites and negro slaves are prohibited
under penalty of fine and imprisonment; it is proved that a negro slave
and a white woman lived and cohabited together. The presumption is
that the relation was that of concubinage and not of marriage.^

F.

I. W. was indicted for the seduction of E. under a statute punishing
the seduction of " any unmarried female of previous chaste character."
The previous chaste character of E. will not be presumed.^

*' It is true," it was said in case I., " that ordinarily the
reasonable and just presumption is in favor of female
chastity. So is likewise the presumption in favor of moral
honesty. Happily these presumptions are not only justified
in all civilized nations, but nobly illustrated as well by the
institutions of social life as by the laws enacted by govern-
ment. Social intercourse is based upon the presumption of
virtue, and society is obliged so far to conform to this law

1 Clayton r. Wardell, 4 X. T. 2?.0 (1S50) ; Case v. Case, 17 Gal. 593 (1S61).

2 Armstrong r. Hodges, 3 B. Mon. (Ky.) 70 (1S41).

8 West V. State, 1 Wis. 209 (1853). But see State v. Well?, 48 Iowa, 671 (1S7S). In
Slocum f. People, 90 111.281 (1878), the prosecution was under a statute punishing
the enticing away from home for the purpose of prostitution, of any unmarried
woman of chaste life and conversation. In deciding the case the Supreme Court
eaid: " The presumption of law is that lior previous life and conversation were
chaste, and the onus was upon the defendant to show otherwise." But the case
ehows that she was only eighteen years old, that previous to her seduction she had
resided with her parents, went to scliool and church and mingled with good society,
and she testified on the trial that she never had intercourse with any man but the
defendant. This expression of tho court was therefore unnecessary, as there was
proof enough to robut the presumption.

588 PRESOIPTIVE EVIDEXCE. [rULE 122.

of its existence that even in its most corrupt state it is com-
pelled to put on, at least, the form and semblance of virtue
though its spirit may have departed. In every case in wliich
the integrity of an individual is attacked the presumption
of the law comes to his aid. Every person charged with
crime is presumed innocent till he be proved guilty. Fraud
is never to be presumed, but must always be proved.
Every female charged with an offense, the essence of which
is unchastity, is presumed to be chaste until the contrary
appears. But these excellent and humane presumptions, so
pregnant with the testimony which they bear to the dignity
and honor of human nature, are always to be used, in the
administration of justice, as a weapon of defense, not of
assault. They are the shield of the accused, not the sword
of the prosecutor. * * * The previous chaste charac-
ter of the female is one of the most essential elements of
the offense, made so by the express words of the statute in
conformity with the suggestions of sound reason. A pros-
titute may be the subject of rape but not of seduction. It
is the chastity of the female which the statute is designed
to protect. The pre-existence of that chastity is the sine
qua noil to the commission of the crime. That is the sub-
ject of legal guardianship provided by this section. It is a
substantive matter necessary to be averred and proved. If
the prosecutrix were to change places, and were she indicted
for lascivious conduct, then, indeed, the legal presumption
would come to her aid and her chastity would be pre-
sumed. But when the State accuses one of its citizens with
the violation of the chastity of another of its citizens by
seduction, the law presumes the accused to be innocent of
the entire offense until the contrary appears. The State
can not be permitted to presume the immediate pre-existence
of that chastity with the destruction of which the defendant
is charo-cd. One act of illicit intercourse affords no pre-
sumption that another has not preceded it. * * * The
error consists in the instruction which the court gave the
jury to the effect that the law presumed that she was pre-

RULE 122.] GENERAL RULES AS TO rRESUMTTIONS. 589

viously of a chaste character, independent of any proof
whatever. This is setting up a presumption on the part of
the State, the prosecuting party, incompatible with the
presumption which the law afTords the defendant, and if the
principle should prevail the presumption of the virtue of
one citizen might work the condemnation of another in
whose favor the law ailbrds equal, and when charged with
crime, even stronger presumption."

G.

I. All persons are presumed to know the common and statute law,
and are responsible for its violation.' Ignorance of the law excuses no
one and can not be pleaded as au excuse for the commission of a crime.

H.

I. A. is charged with a crime; the presumption is that A. was sane
when he committed it, and if he Avishes to be excused ou the ground ol
non-responsibility, he must prove it.^

In case I., if A. was insane when he committed the act,
he could not be punished, for an insane person can not
commit a crime. If the presumption of innocence were
general and without exception, the presumption wx)uld be
that A. was insane — in other words that the act was not a
crime ; that he was innocent because he was non-responsi-
ble. But the presumption of sanity and the presumption
of innocence coming in conflict, the latter must give way
according to the best-considered doctrine on this question.
The subject is an important one, and has led to much dis-
cussion. The decisions are not harmonious, and no ques-
tion is more debated at the present time, when it arises for
actual decision, than the question of the burden of proof
of insanity in criminal cases. Three different views have
been advanced. The first is, that inasmuch as every man
is presumed to be sane, the burden of proof rests on the

1 Mayor of Baltimore v. Norninn, 4 Md. S52 (1S53).
3 Cuuuiugham f. Slate, 5G Miss. 209 (1879).

590 presujMPTive evidence. rule 221.]

party setting insanity up as a defenes to establish this
insanity beyond a reasonable doubt. This, it will be
observed, entirely extinguishes the presumption of inno-
cence in the conflict between that and the other presump-
tion— the presumption of insanity. The second view
likewise considers the presumption of innocence overthrown
by the presumption of sanity, but holds that the presump-
tion of sanity will prevail only until it is shown to be
otherwise in the particular case by a preponderance of the
evidence. In the third view the presumption of innocence
prevails to a certain extent, for, in the jurisdictions where
this view is favored, it is held that insanity being pleaded
the burden of proof rests on the State to prove the sanity
of the prisoner. It is not, however, held in the States
which have adopted this view that insanity is presumed, but
the rule is that if the prisoner gives any evidence to cast a
doubt on his sanity, the State is obliged to prove his sanity
beyond a reasonable doubt.

INDEX.

[The numbers refer to the pages.']

ABSENCE.
See Death.

ACCEPTANCE.
See Interest

ACCIDENT.
See, also, Survtvorship.
To prove that the crime was not accidental, separate crime may be
shown, 488.
Keasons, 490.

ADULTERY.
See Intent.

AGENCY.

Authority to do an act presumed to continue, 172.
Illustrations, 175.

ALTERATIONS.
See, also, Spoliation.
Alterations presumed to be made before execution of instrument,
381.
Illustrations, 381.
Reasons, 382-386.

Exceptions, 387-389.
When this presumption does not obtain —

1. Where alteration is in different hand, 389.

Illustrations, 3!)0.

Reasons, 390-392.

2. Or in different ink, 389.

Illustrations, 393.

3. Or is in interest of party setting it up, 389.

Illustrations, 394.

Reasons, 394-39G.

4. Or is suspicious on its face, 389.

Illustrations, 396.

6. Or execution of Instrument is denied under oath, 389.

Illustrations, 397.

Reasons, 397-400.

(591)

502 IKDEX.

ARSON.
See Intent.

ASSENT.

Presumption that person hears statement in his presence, 279.

ATTEMPT.

Former attempt raises presumption of guilt, 507.
Illustralious, 508.

ATTORNEY.
See Official Acts.

AUTHORITY.
See Officers; Agency.

BANKING.

See Course of Business. •

BILLS AND NOTES.
See Alterations ;, Negotiable Paper.

BONDS.

Presumed paid after twenty years, 308.
Illustrations, 315.
Reasons, 315.

BURDEN OF PROOF.

Burden on party to show facts which he best knows, 20.
Illustrations, 20.
Reasons, 20-23.
Burden on party alleging notice to bona fide holder, 23.

BUSINESS ACTS.
See Course of Business.

CARRIERS.
See Chattels.

CHARACTER.

Character and habit of person presumed to continue, 180.
That a gambler continues a gambler, 180.
That a person's character continues bad, 181.
Reasons, 181, 182.
. Good character presumed, 442.

CHATTELS.

Personal property, possession of raises presumption of ownership,

420.
So these presumed owners —

Person in possession of vessel, 420.
Of sheep, 420.
Of bonds, 420.

INDEX. 5U3

CHATTELS — Continued.
Of note, 420,
Of calf, 420.

Shipping property by carrier, 420.
Kcasons, 420-429.

CIRCUMSTANCES, CUANGE IN.
See Habits.

COMMON LAW.
See Foreign Laws.

CONDUCT OF PRISONER.
See, also, Feau; Flight; Escape; Silence; Spoliation.
False or coutratlictory accounts by prisouer, 630.
Illustrations, 530.
Reasons, 531-533.

CONFLICT OF LAWS.
See Foreign Laws.

CONFLICTING PRESUAfPTIONS.
Of payment and continuance, 582.

Illustrations, 682.
Of innocence and payment, 582.
Illustrations, 682.
Reasons, 682.
Of innocence and continuance of life, 582.
Illustrations, 583.
Reasons, 584.
Of innocence and continuance of things, 682.
Illustrations, 585.
Reasons, 585.
Of innocence and marriage, 582.

Illustrations, 587.
Of innocence and chastity, 582,
Illustrations, 587.
Reasons, 587.
Of knowledge of law and innocence, 682.

Illustrations, 589.
Of sanity and innocence, 582.
Illustrations, 68'J.

CONTENTS OF WRITING.
Sec Knowledge.

CONTINUANCE.
See, also, Life; Death.
Continuance of things, presumption of, 1C3.

Possession or ownership of property presumed to continue, 1G3.
Reasons, 1G3.

88

594 INDEX.

CONTINUANCE — Continuod.

Non-possession or loss of property presumed to continue, 153,
1C4.

Illustrations, 1G4.
Debts presumed to continue, 1C3, 165.

Illustrations, 1G5.
Seasons, 1G5.
Other cases of continuance, 106.

That goods in carrier's hands remain in good order, 166.

That vessel continues seaworthy, IGC.

That party continues to possess money, 16G.

That decree in chancery continues iu force, 1G7.

That custom continues in force, 107.
Eeasons, 107-172.
Domicil, residence or uon-residenee presumed to continue,
172.

Illustrations, 172.
Seasons, 173.
Solvency or insolvency presumed to continue, 172.

Illusti'ations, 173, 174.
Infancy presumed to continue, 172.

Illustrations, 174r.
Eeasons, 174.
Partnership presumed to continue, 172.

Illustrations, 175.
Oflice, holding of, presumed to continue, 172.

Illustrations, 175.
Authority to do an act presumed to continue, 172.

Illustrations, 175.
Other cases of continuance, 175.

That parties live in same relation, 175.

That a person continues a stockholder, 175.

That state of peace continues in country, 176.

That state of war continues in country, 170.

That public treaty is still in force, 170.

That same state of government still exists, 170.

That corporation still exists, 176.

That illicit intercourse continues between parties, 176.

That person's veracit}' is still good, 176.

Tliat woman continues unmarried, 17G.

That common law continues in force, 176.

That a person disabled continues so, 176.

That judge continues interested in property, 176.

That execution remains in sheriff's oflSce, 177.
Eeasons, 177, 178.
Sanity or insanity presumed to continue, 179.

Unless temporary, 179.

INDEX. 595

CONTIXTANCE —Continued.

Character and habit of person presumed to continue, 180.
That a gambler continues a gambler, 180.
That a person's character continues bad, 181.
Reasons, 181, 182.
Acts done in one case do not prove similar act done in another, 182.
That person enters into contract with A. no proof that he did so

with B., 182.
That person was negligent in one case no proof that he was so in

another, 182.
That sale to A. was made on condition no proof that sale to B.

was made on like condition, 182.
That A. sold diseased hog, no proof that he sold diseased beef,

182.
That credit was given to A. once, no proof that it was given to

A. again, 182.
That some of A.'s servants were paid, no proof that others were,

183.
That A. promised to pay B.'s debt no proof that he promised to
pay C.'s, 183.
Reasons, 183-184.
But person presumed to follow his habit, 184.
Illustrations, 184-186.
Reasons, 186-187.
Future continuance not presumed, 187.
Illustrations, 188.
Reasons, 188.
Admission made does not extend in future, 189.
Illustrations, 189.

Reasons, 189-190.
Presumption is not retrospective, 190.
Illustrations, 190.
Reasons, 190-191.
Presumption of continuance weaker than presumption of innocence,
191.

CONTRACTS.
See Course of Buseotss; Documents; Services.

CORPORATION.
See Officers.

COURSE OF BUSINESS.
See Sf.rvices; Negotiable Paper; Dates; Documents. '

Business acts, regularity of presumed, 6.7
That written agreement was signed, 67.
That partners arc interested in equal shares, 67.
That letters are sent in course of business, 67.
That persons doing business together are partners, 68.

59G INDEX.

COURSE OF BUSINESS — Continued.

That party waives defects in goods by keeping them, 68.
That a person is a partner, 68.
That note is a firm note, G8.

That accounts are received by attorney for collection, 68.
That account books of partnership are correct, 68.
That goods are to be paid for on delivery, 68.
That a person promises to pay borrowed money, 68.
That a person has funds to pay draft on himself which he ac-
cepts, 68.
That a person is engaged by the month, G8.
That freight earned belongs to owners of vessel, 68.
That goods charged were delivered, 68.
That one selling to another on credit thinks him solvent, 68.
That a partnership is solvent, 69.
Of solvency from unsatisfied judgments, 69.

And uncollectible debts, 69.
That letter was mailed on day of post-mark, 69.
That two signing note are equally bound, 69.
That letter written by a person is signed by him, 69.
That post-marked letter has been through the mail, 69.
That building is attached to the soil, 69.
That damage has been assessed, 69.
That deed given to a person is in his control, 69.
That persons making joint mortgage are equal owners, 69
That bank-notes are genuine, 65.
That receipt is given for goods received, 70.
That account kept by customer is correct, 70.
That person r^emaining silent acquiesces in stated condition,

70.
That holder is owner of note payable to bearer, 70.
Presumption as to bills and notes, 70.
And as to money in war time, 70.
Reasons for these rulings, 70, 72.
Persons in trade presumed to know value of articles in the trade 72.
And their names, 72.
And the customs of the trade, 72, 73.

COURSE OF NATURE.
See Nature, Course of.

COURTS.
See Judicial Acts.

COVENANTS.

Presumed performed after twenty years, 308.
Illustrations, 320.
Reasons, 321.

CRIMINAL LAW.
See I^•^'ocE^•CE (Criminal Cases) ; Guilt.

INDEX. 507

CUSTOMS OF TRADE.

See IvNOWLEDGE.

DAMAGES.

See \VlTNESSE3.

DATES.

Dates, presumed to be correct, 89,

Tlmt letters were written on their date, 89.

Tliut bill of exchange was issued on date, 89.

That payment was made on date of receipt, 89.

That deed was executed on its date, 89.

That indorsements of receipts of interest was made on their

date, 89.
That assignment was executed on day of date, 89.
That name was written on back of note at time of making, 00.
That action was commenced on day of date of writ, 90.
No presumption as to letter between husbiind and wife, 90.
Reasons, 90-92.
But do not prove collateral facts, 92.

As that party was in city of date at that time, 92.

DEATH.
See, also. Life ; SumTV'ORsnip.
Death may be proved by reputation, 197.
Or by hearsay, 197.

Or by facts inconsistent with continuance of life, 197.
Illustrations, 197.
Unmarried person presumed to have died childless, 197.

Aliter as to married person, 197.
Presumption that person left heir, 198.
Illustrations, 198.
Reasons, 198-199.
Death, presumption of, 200.

Absentee for seven years presumed to have died at end of that
term, 200.
Illustrations, 200-202.
English rule different, 201, note.
Reasons, 202-211.
Rule in the civil law, 211.
What is an "absentee," 212.
Illustrations, 212-213.
Reasons, 213-2U.
Where removal is temporary, absence alone presumes death, 212.

Illustrations, 214.
But when parmanent, inquiry at new abode must be proved, 212.
Illustrations, 214.
Reasons, 215.

598 INDEX.

DEATH — Continued.

"Persons who would naturally hear from him" include relativesf.nd
strangers, 215.
Illustrations, 215.
Reasons, 215
Whatis meant by *' not being heard of," 216.
Illustrations, 216.
Eeasons, 216-221.
"What is absentee's "residence, home or domicil," 222.
Illustrations, 222.
Reasons, 222.
Presumption arises that party has died within seven years —

1. When last heard of he was in desperate health, 222.

Illustrations, 222.
Reasons, 223.

2. Or within that time he embarked on vessel not since heard of
of and overdue, 223.

Illustrations, 223, 224.
Reasons, 225-230.
8. Or within that time he encountered a specific peril, 230.
Illustrations, 230.
Specific peril does not mean ordinary oerils of navigation,

230.
But means an unusual or extraordinary peril, 230,232.
4. Or his habits, relations or necessities would have necessitated
his communicating with his friends, 233.
Illustrations, 233, 237.
Presumption of death at end of seven years does not arise —

1. Where it is improbable party even if alive would have been
heard of, 237.

Illustrations, 237.
Reasons, 237-239.

2. Where he is mentioned as alive in subsequent judicial pro-
ceedings, 237.

Illustrations, 239.

DEBTS.

Debts presumed to continue, 1G3, 165,
Illustrations, 165.
Reasons, 165.

DEEDS —ALTERATIONS.
See Documents ; Real Property.

DEFINITIONS.

Definition of " presumption," 556.
Definition of " presumption of law," 656.
Definition of presumption of fact, 556.
Illustrations, 559-560.
Reasons, 560-569.

INDEX. 599

DESTRUCTION OF EVIDENCE.
See Si'OLiATio.v.

DISCHARGE OF OBLIGATIONS.
See Taymknt.

DOCUMENTS.

Documents presumed to be regularly executed, 8?.

That agreement is stamped as statute requires, 82, 83
That assignment is properly enrolled, 82.
That deed was sealed, 83.
That deed was delivered, 83.
That deeds were delivered in proper order, 83, 84.
That mortgage was properly executed, 84.
That deed was delivered ou day of date, 84.
That consideration was money value, 84.
That agreement is in writing, 84.
That deeds were signed in proper order, 85.
That mortgage was executed where land lies, 85.
That mortgage was paid on day due, 85.
That land was properly located, 85.
Reasons for the rulings, 85-83.

DOMICIL.
See also, Death.
Domicil, residence or non-residence presumed to continue, 172.
Illustrations, 172.
Reasons, 173.

DRUNKENNESS.
See Intent.

ESCAPE.

Attempts to escape raise presumption of guilt, 537.
Illustrations, 537.
Reasons, 538.
Aliter wlien it is for another crime, 537,
Illustrations, 539,

EVIDENCE.
See Witnesses.

FABRICATION OF E\T:DENCE.
See SroLiATiox.

FAILURE TO TESTIFY
See Witness.

FALSIFICATION OF EVIDENCE.
See Spoliation.

600 INDEX.

TEAR.

Fear raises presumption of guilt, 534.
Illustrations, 53-i.
Reasons, 53-1-536,
Aliter when fear may be on account of another crime, 534.
Illustrations, 536.

FATHER AND SOX.
See Identity; Survivorship.

FLIGHT.

Flight raises presumption of guilt, 637.
Illustrations, 537.
Reasons, 537.

FOREIGN LAWS.

Presumption as to, 358.

Law of forum presumed to be the law of foreign state, 358.
Illustrations, 358-3G0.
Reasons, 360-3G5.
Acts malum in se presumed to be crimes in foreign country, 365.

Illustrations, 8G5.
No presumption of identity of law as to country not subject to com-
mon law, 3G6.
Illustrations, 3G6.

Reasons, 366-369.
Or tribe or nation uncivilized, 366.
Illustrations, 369.
Constructed of an adopted statute, 369.

Illustrations, 369.
•• Law " means common and not statute law, 370.
Illustrations, 370, 372.

Reasons, 370, 373-379.
But not rule of common law which has exceptions, 379.
Illustrations, 379.

FRAUD.

Fraud never presumed, 93, 98, 439.

That documents were fairly obtained, 98.

That party owns land he conveys, 98.

That party not guilty of fraud, 98.

That goods were not sold contrary to law, 101.

That contract is not usurious, 102.

Tliat act entailing penalty has not been done, 102.

That seller of liquor has a license, 102.

That future tenants will not violate the law, 102.

That sale was not fraudulent, 439.

That exchange of property was bona fide, 440.

That party did not misappropriate papers, 440.

That mortgage is valid, 440.

INDEX. GOl

FRAUD — Contiiincd.

That adiiiiuistrator has made proper return, 440.
Fraud may be inferred f rom cireiunstances, 100.
Reasons for the rule, 'J'J, 440, 442.

FRUITS OF CRIME.
See Habits.
Possession of fruits of crime raises presumption of guilt, 615.
lUustratious, 51G.
Reasons, 61G.
Recent possession in larceny or robbery, 518.
Illustrations, 518.

Reasons, 519-522.
Reasonable explanation of possession overthrows presumption,
622.
Illustrations, 522.
Reasons, 622.
Unless explanation inconsistent, 622.
Illustrations, 523.
Reasons, 523.
What is or is not "recent," 624.
Kind of property a test, 624.
Illustrations, 625.
Reasons, 626-529.

GIFT.
See IXTEXT.

GUILT.

Presumptions of, 493-554.

Motive, guilt presumed from, 403.
Methods of showing motive, 496.
Desire of gain, 495.
Illustrations, 49G.
Reasons, 49G-498.
Gratification of passion, 495.
Illustrations, 498.

Reasons, 499-505.
Preservation of reputation, 495.
Illustrations, 505.
Opportunity raises presumption of guilt, 606
Illustrations, 506.

Unless another had better opportunity, 606.
Illustrations, 506.
Former attempt raises presumption, 507.
Illustrations, 507.
Reasons, 508.
Preparations raise presumption, 503.
To acfomplish crime, 608.
Illustrations, 608.

G02 INDEX.

GUILT — Continued.

To prevent discovery, 503

Illustrations, 509.
To aid escape, 508.

Illustrations, 509.
To avert suspicion, 508.
Illustrations, 509.
Reasons, 510.
Aliter where preparations innocent, 510.

Illustrations, 510.
Or for another crime, 510.

Illustrations, 511.
Or crime frustrated or abandoned, 510.
Illustrations, 511.
Threats raise presumption of guilt, 511.
Illustrations, 511.
Reasons, 512.
Aliter when another may have executed them, 612.
Illustrations, 513.
Possession of means of committing crime raises presumption,
513.

Illustrations, 513.
Reasons, 514.
Varies as to occupation, character, or sex of prisoner, 513.
Illustrations, 515.
Possession of fruits of crime raises presumption, 515.
Illustrations, 516.
Reasons, 51G.
Recent possession in larceny or robbery, 518.
Illustrations, 518.

Reasons, 519-522.
Reasonable explanation of possession overthrows presump-
tion, 522.

Illustrations, 522.
Reasons, 522,
Unless explanation inconsistent, 522.
Illustrations, 623.
Reasons, 523.
What is or is not " recent," 524.
Kind of property a test, 624.
Illustrations, 525.
Reasons, 62G-529.
Change in life and circumstances of prisoner, 529.

Illustrations, 529.
False or contradictory accounts by prisoner, 630.
Illustrations, 530.
Reasons, 631-533.

rxDEX. COS

GUILT — Continued.

Attempt to thwart investigation, 533.

Illustrations, 533.
Tear raises presumption of guilt, 634.
Illustrations, 534.

Reasons, 534-536.
Aliter when fear may be on account of another crime, 634.
Illustrations, 53(!.
Flight raises presumption of guilt, 537.
Illustrations, 537.
Reasons, 537.
Attempts to escape raise presumption, 537.
Illustrations, 537.
Reasons, 538.
Aliter when it is for another crime, 637.
Illustrations, 539.
Destfuction of evidence raises presumption, 639.

Illustrations, 541.
Concealment of evidence, 539.

Illustrations, 541.
Fabrication of evidence, 639.
Illustrations, 542.
Reasons, 543.
Silence when interrogated raises presumption, 515.
Illustrations, 545.
Reasons, 546.
Unless in judicial interrogation, 545.
Illustrations, 549.
Reasons, 549.
Failure to produce evidence raises presumption, 649.
Illustrations, 551.
Reasons, 551.
Prisoner declining to testify in his own behalf, 651.

HABITS.
See, also, Character.
Change in life and circumstances of prisoner raises presumption of
guilt, 520.

Illustrations, 529.

HANDWRITING.
See Alterations.

HUSBAND AND WIFE.

Presumed coercion of wife, 279.

That husband is head of family, 270.

That deed to wife is in custody of husband, 279.

Presumption as to child bearing, 302.

C)04 INDEX.

IDENTITY.

Identity, presumption of, 248.

Identity of name raises presumption of identity of person —

1. Where there is similarity of residence, 248.

Illustrations, 250.

2. When there is similarity of trade, 248.

Illustrations, 250.
Reasons, 251.

3. When there is similarity of circumstances, 248.

Illustrations, 250.

4. Where name is an unusual one, 248.

Illustrations, 252.

Reasons, 253, 254.
No presumption where name is a common one or there are sev-
eral of same name at place, 248.
Illustrations, 254.
Family name and initials the same raises no presumption of
identity, 255.
Illustrations, 255.
Reasons, 255.
Two persons of same name occupy different positions and rela-
tions— presumption is that they are different persons, 256.
Illustrations, 256.
Initials preceding name, construction of, 257.
When interest is claimed, identity of name insufficient, 257.

Illustrations, 257.
Father and son or two persons of same name, presumption that
name means eldest, 258. '

Illustrations, 258.

Reasons, 259, 260.
Aliter as to mother and daughter, 260.
Identity of things presumed from circumstances, 261.
Illustrations, 261.

IMPLEMENTS OF CRIME.

See Means of Committing Crime.

INFANCY.

Infancy presumed to continue, 172.
Illustrations, 174.
Reasons, 174.
Responsibility of infant for crime, 279.

INITIALS.
See Identity.

INK.
See Alterations.

IXDEX.

605

INNOCENCE (Cu-j7 Cases).
See, also, Fraud; Nkohgexce.
luuocence in civil cases presumed, 03.

That parties cohabiting are married, 93.

That persons of different colors living together are not married,

93.
That husband living with woman other than his wife is di-
vorced, 93.
Marriage presumed to legalize acts, 93, 94.
That car tracks in street are necessary, 94.
That visits of physician were necessary, 94.
That insolvent exhibits true account, 94.
That prosecution was for cause, 94.
That lost decree of divorce was recorded, 95.
Reasons for the rulings, 95.

INNOCENCE {Criminal Cases).

Three famous things In law, 433.

The presumption of innocence, 433.
The reasonable doubt, 434.
The burden of proof, 434.
Innocent, person charged with crime presumed, 433.

That two of different sexes living together aud cohabiting are
married, 433.
Aliter if marriage between them is prohibited, 434.
From taking thing no presumption of theft, 435.
Person marrying again, first husband or wife presumed dead

or divorced, 435.
That marriage was properly solemnized, 435.
That notice as required by statute was given, 436.
That works, otherwise a nuisance, are necessary, 436.
That physician's visits are necessary, 436.
That person holding ofDce has qualifled, 430.
That sworn account is true, 436.
That prosecution is for cause and not malicious, 436.
That statute is not violated, 430.
Other illustrations, 438.
Reasons, 437-439.
Good character presumed, 442.

Presumption of innocence not taken away hy prima facie case, 445.
Illustrations, 445.

Reasons, 445-447.
Presumption of innocence prevails over presumption of continu-
ance of life, 447.
Illustrations, 449.
Reasons, 448.
Presumption of innocence prevails over presumption of continuance
of things generally, 447.

GOG INDEX.

INNOCENCE {Criminal Casses; — Continued.
Illustrations, 449.
Reasons, 450.

Exception, 450,
Presumption of innocence prevails over presumption of marriage, 447.

Illustrations. 451.
Presumption of innocence prevails over presumption of chastity, 447.
Illustrations, 451.
Reasons, 452.
Presumption of innocence weaker than presumption of knowledge
of law, 447.

Illustrations, 453.
Reasons, 454-457.
Presumption of innocence weaker than presumption of sanity, 447,
Illustrations, 457.
Reasons, 458.
The burden of proof of insanity, 450.
Presumption of innocence strengthened by relation of parties, 460.

As that murdered person is wife of suspected murderer, 4C0.
But presumption of innocence overcome by finding of indictment
except for purpose of trial, 4G0.
Illustration, 4G0.
Qualification to do act presumed, 4G1.

Therefore these presumptions arise —

That parties living together as husband and wife are mar-
ried, 4G1.
That consent to sale of liquor to prohibited party has been

given, 4G1.
That party has consent to do act requiring consent, 461.
That officer made report required by statute, 4G1.
Reasons, 4G2-4G5.
Aliter where proof is peculiarly in possession of defendant, 4G1.
As that bailiff has public license to do act, 465
Other illustrations, 4G5.
Reasons, 4G5.
"Even though it may involve defendant in proving his innocence,
461.
Illustration, 4GG.
Person presumed to intend natural consequences of his acts, 467.
Illustrations, 467.
Reasons, 468.
Where act criminal per se criminal intent presumed, 469.
Illustrations, 469.

Reasons, 469-472.
Unless specific intent required by statute, 472,
Illustration, 472.
Reasons, 473.

Dr. Wharton's illustrations, 474.

INDEX. 007

DsXOCENCE {Criminal Crtsscs) —Continued.

Possession may overthrow presumption of innocence, 478.

Illustrations, 478-481.
Knowledj^e may overthrow presumption of iuuocence, 473.

Illustrations, 478-481.
Motive may overthrow presumption of innocence, '478.

Illustrations, 478-481. .
Other crime than that charged can not be proved against prisoner, 481.
Illustrations, 481-483.
As that prisoner had tendency to commit crime of Icind charged,

483.
That person indicted for raping T. had raped L., 483.
That person indicted for poisoning his wife had been intimate

with woman whose husband had been poisoned, 483.
That one indicted for riot had participated in a previous riot,

483.
That person indicted for forging A.'s name had forged B.'s, 483.
That one indicted for hiring A. to steal had hired him to forge,

483.
That person indicted for stealing from B. had assaulted him,

483.
That person indicted for stealing a horse had stolen money, 483.
That person charged with performing abortion on A. had doue so

onB., 483.
That person charged with murder of illegitimate child had com-
mitted rape, 484.
That woman charged with killing one child had killed another,
484.
Keasons, 484, 485.
Other instances, 48G.
To prove knowledge or intent, another crime may be shown, 487.
Illustrations, 487.
Keasons, 487,488.
To prove motive, another crime may be shown, 487.

Illustrations, 488.
To prove that crime was not accidental, separate crime may be
shown, 488.
Illustrations, 489.
Reasons, 490.
Ites geatce may be proved though another crime, 490.
Illustrations, 490.

Reasons, 491, 492.

INSANITY.

Sanity or insanity presumed to continue, 179.
Unless temporary, 179.

INSOLVENCY.
See SoLNTENCY; Course of Bcsintiss.

G08 INDEX.

INTEXT.

Presumptions of, 2C<2.

Party presumetl to intend natural consequences of his acts, 262.
That libeller intended to injure libelled, 2G:2.
That party selling bad bread intended it to be eaten, 202.
That party conveying to creditor intended to prefer him,

262.
That person stopping in house of ill-fame has intercourse,

2G2.
That person removes to anotherJ]State to obtain divorce,

263.
That person preferring creditor intended to, 2C3.
Reasons, 2G3-2C4.
Party presumed to intend legal consequences of his acts, 202.
That persons signing " as trustees " intended to bind them-
selves personally, 204.
That persons giving receipt under seal intended it to be
conclusive, 264.
Aliter as to receipt not under seal, 264,
That one forging another's name intended to defraud him,

204.
That person firing building intended to destroy it, 204.
That person giving note intends it to be paid in legal cur-
rency, 264. i
Reasons, 205-200.
Act criminal per se presumed to be criminally intended, 206.
Illustrations, 206.

Reasons, 260-271.
But where specific intent required it must be proved, 271.
Illustrations, 271.
Reasons, 271.
Intent presumed from acts in absence of declarations, 272,
Illustrations, 272.

Reasons, 272-274
Unless party is physically or mentally unable, 272.
Illustrations, 274,

As when drunken, 274.
Reasons, 274-275.
Person presumed to intend to do what is within his right and
power, and not what is beyond them, 270.
Illustrations, 270, 277.
Reasons, 277-278.
To prove intent, another crime may be shown, 487.
Illustrations, 487.

Reasons, 487, 488.

INTEREST, ACTS IN ONE'S.

Person presumed to act in his own interest, 303.

IXDEX. 609

INTEREST, ACTS IN ONE'S — Continued.

That person accopta estates devised to him, 303,

Or conveyed to him, 303.
That charter is accepted by grantee, 304.

That wife elects to take provision most beneflcial to her, 304,
That person assents to arrangement for his benefit, 304.
That creditor assents to assignment, 304.
That a debt is paid rather than a loan made, 304.
That legacy to creditor is payment not a loan, 304.
That property given by parent to child is an advancement, 304.
That money given to anotlier is a loan rather than a gift, 305.
That A. does not consent to arrangement not to his interest, 305.
That servant performs services properly, 305.
Reasons, 305-307.

INTERNATIONAL LAW.
Presumptions In, 150, 151.

INTOXICATION.
See Intent.

ISSUE.

Presumptions as to child bearing, 302.

JUDGMENTS.

Judgments presumed paid after twenty years, 308.
Illustrations, 320.

JUDICIAL ACTS.

Jurisdiction of court of general jurisdiction presumed, 27.

Illustrations, 27.
Jurisdiction of inferior court not presumed, 27.
What is an " inferior court," 29.
Justice of the peace, 29.
Magistrate's court, 29.
County Court in Iowa, 29.
What is a superior court, 29.
Common law courts, 29.
Court Palatine, 29.
Court of Chancery, 29.
Court of Probate, 29.
County Court in Iowa, 29.
Examination before magistrates, jurisdiction not presumed, 30.
Jurisdiction not presumed where authority is given in certain case
or for special purpose, 27.
Illustrations, 31.
Jurisdiction not presumed where proceedings are not according to
common law, 27.
Illustrations, 33.

89

610 INDEX.

JUDICIAL ACTS — Coutinucd.

Eogularity of proceedings of courts of general powers presumed, 34.
Decisions in the different States, Si-ST.

Illustrations, 37.
That resignation of officer was legal, 37.
That jury were properly sworn, 37, 38, 39.
That infants were regularly summoned, 37.
That bond was approved by court, 37.
That referee's decision was made on merits, 37.
That charge of court was in writing, 37.
That jury were discharged with consent, 38.
That evidence warranted master's report of sale, 38.
That attorney had authority to execute appeal bond, 38.
That order was granted on proper application, 38.
That special term of court was properly called, 38
That reason for exchange of judges existed, 38.
That judge authorized by law presided, 38.
That jury disregarded improper evidence, 38.
That vacancies existed in offices, 38.
That jury was composed of twelve men, 38.
That defendant was present at sentence, 39.
That evidence justified decree, 39.

Other illustrations, 39.

Ecasons for rulings, 41-43.
Regularity of proceedings of inferior courts presumed where juris-
diction shown, 34.
Illustrations, 43.

That entry in docket was properly made, 43.
That proceedings of Probate Court were regular, 43.
That appointment was made in proper time, 43.
That court was open at proper term, 43.

Reasons for the rulings, 44.
Jurisdiction of person beyond territorial limits not presumed, 45.
Presumption can not controvert facts, 46.

JURISDICTION.

Jurisdiction of court of general jurisdiction presumed, 27.

Illustrations, 27.
Jurisdiction of inferior court not presumed, 27.
What is an " inferior court," 29.
Justice of the peace, 29.
Magistrate's court, 29.
County Court in Iowa, 29
What is a superior court, 29.
Common-law courts, 29.
Court Palatine, 29.
Court of Chancery, 29.
Court of Probate, 29.
County Court in Iowa, 29.

INDEX. Gil

JURISDICTIOX — Continued.

Examiuatioa before magistrates, jurisdiction not presumed, 30.
Jurisdiction not presumed wlioru uutliority is given in certain case
or for special purpose, 27.
Illustrations, 31.
Jurisdiction not presumed wliere proceedings are not according to
common law, 27.
Illustrations, 33.
Jurisdiction of person beyond territorial limits not presumed, 45.

KNOWLEDGE.

Knowledge of law, presumption of, 5.

Every person presumed to know the law, 6.
Meaning of the maxim, 5.

Illustrations, (!.
That admissions by party are made with knowledge of lega[

rights, G.
That persons signing note "as trustees" intend to be per-
sonally bound, t>.
Promise to pay enforced, though made under mistake of law
as to liability, 6.
Other illustrations, 7.
Reasons, 8-14.
No presumption of knowledge of private or foreign laws, 14.
As by-laws of school, 14.

Or laws of Massachusetts by person in New York, 14.
Persons engaged in trade presumed to know value of articles dealt
in, 15.

Illustrations, 15.

And names under which they go, 15.

Illustrations, 16.
And general customs of the trade, 15.
Illustrations, 16.
Reasons, 17, 18.
Contents of writing signed by party presumed to be known to signer
18.

Dlustrations, 18.
Reasons, I'J.
So of paper drawn up by one for another, 13.

Illustrations, I'J.
And matters referred to in such writing, 13.
Illustrations, I'.t.
Burden on party to show facts which he best knows, 20.
Illustrations, 20.
Reasons, 20-23.
Burden on party alleging notice to bonafid^ holder, 23.
Illustrations, 23.

612 INDEX.

IvXOWLEDGE — CoDtimied.

No presumption that party not called as -witness has kno^vledge of
facts, 23.
Illustrations, 23.
Knowledge may overthrow presumption of innocence, 478.

Illustrations, 478-481.
To prove knowledge, another crime may be shown, 487.
Illustrations, 487.

Reasons, 487, 483.

LAPSE OF TIME.
See Payment ; Real Property.

L.A.RCENY.
See Recent Possession.

LAW AND FACT GENERALLY, PRESUMPTIONS OF.
Knowledge of law, presumption of, 5.

Every person presumed to know the law, 5.
Meaning of the maxim, 5.

Illustrations, 6.
That admissions by party are made with knowledge of legax

rights, 6.
That persons signing note "as trustees" iutend to be per-
sonally bound, 6.
Promise to pay enforced, though made under mistake of law
as to liability, 6.
Other illustrations, 7.
Reasons, 8-14.
No presumption of knowledge of private or foreign laws, 14.
As by-laws of school, 14.

Or laws of Massachusetts by person in New York, 14.
Persons engaged in trade presumed to know value of articles dealt
in, 15.

Illustrations, 15.

And names under which they go, 15.

Illustrations, IG.
And general customs of the trade, 15.
Illustrations, 16.
Reasons, 17, 18.
Contents of writing signed by party presumed to be known to signer,
18.
Illustrations, 18.
Reasons, 19.
So of paper drawn up by one for another, 18.

Illustrations, 19.
And matters referred to in such writing, 18.
Illustrations, 19.

INDEX. 013

LAW AND FACT GENERALLY, PRESUMrTTOXS OF— Continued.
Burden on party to show facts which he best kuows, 20.
Illustrations, 20.
Reasons, 20-23.
Burden on party alleging notice to bonajide holder, 23.

Illustrations, 23.
No presumption that party not called as witness has knowledge of
facts, 23.
Illii.strations, 23.
Regularity and innocence, presumptions of, 27.
Judicial acts, regularity of, 27.

Jurisdiction of court of general jurisdiction presumed, 27.

Illustrations, 27.
Jurisdiction of inferior court not presumed, 27.
What is an *' inferior court," 29.
Justice of the peace, 2!).
Magistrate's court, 29.
County Court in Iowa, 29.
What is a superior court, 29.
Common law courts, 29.
Court Palatine, 29.
Court of Chancery, 29.
Court of Probate, 29.
County Court in Iowa, 29.
Examination before magistrates, jurisdiction not presumed,
30.
Jurisdiction not presumed where authority is given in certain
case or for special purpose, 27.
Illustrations, 31.
Jurisdiction not presumed where proceedings are not according
to common law, 27.
Illustrations, 33.
Regularity of proceedings of courts of general powers pre-
sumed, 34.
Decisions in the different States, 34-37.

Illustrations, 37.
That resignation of officer was legal, 37.
That jury were properly sworn, 37, 38, 30.
That infants were regularly summoned, 37.
That Ijond was approved by court, 37.
That referee's decision was made on merits, 37.
Tluit charge of court was in writing, 37.
That jury were discharged with consent, 38.
That evidence warranted master's report of sale, 38.
That attorney had authority to execute appeal bond, 38.
That order was granted on proper application, 38.
That special term of court was properly called, 33

G14 INDEX.

LAW AND FACT GENEEALLY, PRESUMPTIONS OF — Continued.

That reason for exchange of judges existed, 38.

That judge authorized by law presided, 38.

That jury disregarded improper evidence, 38.

That vacancies existed in offices, 38.

That jury was composed of twelve men, 38.

That defendant was present at sentence, 39.

That evidence justified decree, 39.
Other illustrations, 39.

Eeasousfor rulings, 41-43.
Regularity of proceedings of inferior courts presumed where
jurisdiction shown, 34.

Illustrations, 43.

That entry iu docket was properly made, 43.

That proceedings of Probate Court were regular, 43.

That appointmient was made in proper time, 43.

That court was open at proper term, 43.
Reasons for the rulings, 44.
Jurisdiction of person beyond territorial limits not presumed,
45.

Presumption can not controvert facts, 46.
Official authority, regularity of, presumed, 47.

That officer was properly appointed, 49.

That attorney is properly enrolled, 49.

That vestry clerk is properly appointed, 49.

So as to pound-keeper, 49.

as to collector of taxes, 49.

As to church warden, 50.

As to master in chancery, 50.

That soldier is attested, 50.

That surrogate has authority to administer oath, 60.

That person is officer of post-office, 50.

That trustees have authority, 50.

That notary has power to take affidavits, 60.

That attorney has authority from client, 50.
Reason for these rulings, 50.
Officers, presumptions that, dp their legal duty, 53.

Illustrations in the different States, 54-55.

That officer made entries, 54.

That vote of council was unanimous, 55.

That officer was elected by ballot, 55.

That affidavit was made in court, 50.

That register acted on proper evidence, 56.

That levy was made by sheriff, 50.

That seal is good without wax, 56.

That appearance was entered by authorized attorney, 56.

That proclamation was posted by order of commander, 56.

'I

INDEX. 015

LAW x\XD FACT GENERALLY, PRESUMPTIONS OF — Continued.

Tluit proper notice was given bj" odicers, 50.

That meetinj; of corporation was properly adjourned, 57.

That fee charged is legal, 57.

That summons was served in apt time, 57.

That administrator has made proper settlement, 67.

That writ was properly returned by sheriff, 57.

That public surveyor is quulilled, 57.

That judgment was properly recorded by recorder, 53.

That land was appraised before being sold, 5rf.

That taxes were paid by testator, 68.
Reasons for the rulings, 59.
Legislature presumed to have acted properly, 58.

That bill was passed constitutionally, US.

That verbal changes in bill were authorized, 58.

That Legislature intended to omit words in statute, 53.

Statute presaraed to be constitutional, 58.

That municipal ortiinauce is regular, 58.
Private officers presumed to be properly appointed and to do
their duty, GO.

That cashier's bond was approved, CO.

That corporation president had power to indorse note, CO.

That officers of corporation were properly appointed, CO.

That attorneys for State had authority of governor, Gl.

That corporation assents to suit brought in its name, Gl.

That corporation's seal is attached to contract by authority.
61.

That oflBcer acts without malice, CI.

That quorum of members were present at meeting, 61.
Reasons for the rulings, C1-G6.
Business acts, regularity of presumed, C7.

That written agreement was signed, 67.

That partners are interested in equal shares, 67.

That letters are sent in course of business, C7.

That persons doing business together are partners, 68.

That party waives defects in goods by keeping them, G8.

That a person is a partner, 68.

That note is firm note, 68.

That accounts are received by attorney for collection, 68.

That account books of partnership are correct, 68.

That goods are to be paid for on delivery, G8.

That a person promises to pay borrowed money, 68.

That a person has funds to pay draft on himself Avhich he
accepts, C8.

That a person is engaged by the month, C8,

That freight earned l)elongs to owners of vessel, 68.

That goods charged were delivered, CS,

616 INDEX.

LAW .LN'D FACT GENERALLY, PRESUMPTIONS OF — Continued.

That one selling to another on credit thinks him solveut, G9.

That a partnership is solvent, G8.

Of insolvenc}' from unsatisfied judgments, C9.

And uncollectible debts, 09.
That letter was mailed on day of post-mark, G9.
That two signing note are equally bound, 09.
That letter written by a persou is signed by him, G9.
That post-marked letter has been through the mail, C9.
That building is attached to the soil, G9.
That damage has been assessed, 09.
That deed given to a person is in his control, 69.
That persons making joint mortgage are equal owners, 69.
That bank-notes are genuine, 09.
That receipt is given for goods received, 70.
That account kept by customer is correct, 70.
That person remaining silent acquiesces iu stated coudition,

70.
That holder is owner of note payable to bearer, 70.
Presumption as to bills and notes, 70.
And as to money in war time, 70.
Reasons for these rulings, 70-72.
Persons in trade presumed to know value of articles iu the trade, 72.
And their names, 72.
And the customs of the trade, 72, 73.
Services, agreement to pay for presumed, 74.
To pay medical services rendered, 74.

But not where parties are near relatives or of the same family,
74.
Illustrations, 75,
Reasons, 75-77.
Negotiable paper, presumed to be regularly negotiated and held, 77.
That holder of note is bona fide holder, 77, 78.
That note is transferred on day due, 78.
That indorsement was made before note was due, 78.
Reasons, 78.
Except when there is fraud, duress or illegality, 79.
Illustrations, 79.
Reasons, 80.
Right, presumption that act was done of, 81.
Moral duty, performance of not presumed, 81.

Illustrations, 81.
Documents presumed to be regularly executed, 82.

That agreement is stamped as statute requires, 82, 83.
That assignment is properly enrolled, 82.
That deed was sealed, 83.
That deed was delivered, 83.

INDEX. <)17

LAW AND FACT GENERALLY, TRESUMPTIONS OF — Coutinucd.

That deeds were delivered in proper order, 83, 84.

That mortgage was properly executed, 84.

That deed was delivered on day of date, 84.

That consideration was money value, 84.

That agreement Is In writing, 84.

That deeds were signed in jtroper order, 85.

That mortgage was executed where land lies, 85.

That mortgage was paid on day due, 85.

That land was properly located, 85.
Reasons for the rulings, 85-88.
t)atcs, presumed to b* correct, 89.

That letters were written on their date, 89.

That bill of exc^inge was issued on date, 89.

That payment w^s made on date of receipt, 89.

That deeil was executed on its date, 80.

Tliat indorsements of receipts of interest was made on their
date, 89.

That assignment Avas executed on day of date, 80.

That name was written on back of note at time of making, 90.

That actioo was commenced on day of date of writ, 90.

No presumption as to letters between husband and wife, 90.
Reasons, 90-92.

But do rot prove collateral facts, 02,

As that party was in city of date at that time, 92.
Innocence in civil cases presumed, 9:3.

Ti\at parties cohabiting are married, 03.

That persons of different colors living together arc not married,
93.

That husband living with woman other than his wife is di-
vorced, 93.

Marriage presumed to legalize acts, 93, 94.

That car tracks in street are necessary, 94.

That visits of physician were necessary, 94.

That insolvent exhibits true account, 94.

That prosecution was for cause, 94.

That lost decree of divorce was recorded, 95.
Reasons for the rulings, 95.
Fraud never presumed, 93, 98, 439.

That documents were fairly obtained, 98.

That parly owns land he conveys, 98.

That party not guilty of fraud, 98.
Reasons for the rule, 99.
Fraud may be inferred from circumstances, 100.

Tliat goods were not sold contrary to law, 101.

That contract is not usurious, 102.

That act entailing penalty has not been done, 102.

G18 INDEX.

LAW AXD FACT GENERALLY, PKESUMPTIONS OF — Continued.
That seller of liquor has a license, 102.
That future tenants Avill not violate the law, 102.
Negligence not presumed, 102.

That fire Tvas notncgligent, 102.
That vessel was seaworthy, 102.
AUter that boiler which exploded was defective, 102.
That blast was not properly covered, 103.
That animal on railroad track was negligently killed, 103.
Marriage is presumed, 10-1.
Parentage is presumed, 105.

That marriage ceremony was properly performed, lOG.
Presumption that every person is legitimate, 107.

Illustrations, 109.
Old rule on the subject, 108.
Pule relaxed in modern times, 109-112.

Presumption of sexual intercourse from proof of access, 114.
Evidence of rumor of illegitimacy insufficient, 115.
Proof of access not conclusive, 115.
Conduct of supposed parent towards child relevant, IIG.
That wife lived in open adultery relevant, 117.
Presumption holds where parties are living apart by consent,
117.
AUter vihcn by decree of court, 117.
Declarations of wife inadmissible, 118.

Legitimacy of child can not be contested by mother or heirs, 118.
Spoliator, presumptions against a, 120.

Omission of party to testify, presumption arises against him, 120.
Of seaman who had charge of light on vessel, 121.
Of party who is charged with fraud, 121.
Refusal to produce deed on which party claims, 121.
Or to produce letter sent to one, 121
Or to produce book claimed as private one, 122.
Agreement not produced presumed stamped, 122.
Invoices not produced, goods presumed undervalued, 122.
Refusal to produce building plan or to allow expert to ex-
amine building, 122,
Contents of bottles of liquor not proven, presumption that

it was the cheapest of liquor, 122.
Amount of note not proved, presurrptiou that it was of the

smallest denomination, 122.
Price of cattle received of owner not shown, presumption

that it was the highest, !23.
Witness refusing to explain facts in her knowledge, 123.
And refusing to produce books, 123.

Four out of five attorneys of a party deny a fact, presump-
tion that the other could not, 123.
Reasons, J ^3-134.

INDEX. C19

LAW AND FACT GENERALLY, PRESUMPTIONS OF— Continued.
As to annoyauce from passiiij^ trains, 134.
Exceptions wtierc evidence is not liis power, 120, 135.
As wtiere another has his muniments of title, 135.
Or a witness is equally within tlie call of both sides, 135.
Or there is uo proof that he 1ms better evidence, 135.
Reasons, 135-137.
Exception when evidence is privileged, 1.17.

As conOdeutial communication between attornc}' and client, 137.
Presumption arising from non-production of evidence does not
relieve opposite party from proving his case, 137.
Illustrations, 137.
Reasons, 138-140.
Alteration, suppression, falsiflcation or manufacturing evidence, pre-
sumption from, 140.

Goldsmith taking stone from soclict and converting It, stone

presumed to be of the highest value and water, 140.
Party having part of stolen diamonds presumed to have all, 141.
Executor altering papers of testator, 141.
Husband suppressing deed of wife, 141.
Party preventing value of goods being shown mulct In

highest, 141.
Destruction of deed by claimant, 141.
' And of contract of sale by indorser, 142.
Carrying off mortgaged goods, 142.
Destruction of boud.by obligor, 142,
Destruction of evidence of payment by party, 142.
Kidnapping of heir to estate by claimant, 142
Manufacturing of evidence by party to a cause, 143.
Falsity of seal on certificate, 143.
Alterations in account book by creditor, 143.
Reasons, 143-148.

Trustee failing to preserve his vouchers, 148.
Agent of candidate destroying his accounts, 148.
Concealment of books by oflicers of corporations, 148.
Destruction of vouchers and invoices by partner, 149.

Reasons, 148-149.
Presumptions in international law, 150-151.
Spoliation alone may defeat claim but can not sustain one, 152, 153.
Presumption against spoliator does not arise.

1. Where documents otherwise proved, 154.

Illustrations, 154.

2. Or spoliation open and for cause, 154.

Illustrations, 154.
Does not extend beyond thing taken or suppressed, 155.
Presumption is not conclusive, 15(!.
Destruction voluntarily of document precludes spoliator from giving
secondary evidence, 157.

620 IXDEX.

LAW AXD FACT GEXERALLY, PRESUMPTIONS OF— Continued.
A. burns up B.'s note to him, A. can not sue B. on it, 157.
Person burning up letter can not prove its contents, 157.
Party mutilating paper can not prove its contents, 157.
Illustrations and reasons, 157-159.
Unless destruction was the result of mistake or accident, 159.
Illustrations, 159.

Reasons, 159, IGO.
Continuance of tlaings, presumption of, 103.

Possession or ownership of property presumed to continue, 1C3.

Reasons, 103.
Non-possession or loss of property presumed to continue, 153,
104.
Illustrations, 104.
Debts presumed to continue, 103, 105.
Illustrations, 105.
Reasons, 105.
Other cases of continuance, 166.

That goods in carrier's hands remain in good order, 166.
That vessel continues seaworthy, 106.
That party continues to possess money, 100.
That decree in chancery continues in force, 107.
That custom continues in force, 107.
Reasons, 167-172.
Domicil, residence or non-residence presumed to continue, 172.
Illustrations, 172.
Reasons, 173.
Solvency or insolvency presumed to continue, 172.

Illustrations, 173, 174.
Infancy presumed to continue, 172.
Illustrations, 174.
Reasons, 174.
Partnership presumed to continue, 172.

Illustrations, 175.
Office, holding of, presumed to coutiuue, 172.

Illustrations, 175.
Authority to do an act presumed-to coutiuue, 172.

Illustrations, 175.
Other cases of continuance, 175.

That parties live in same relation, 175.

That a person continues a stockholder, 175.

That state of peace continues in country, 176.

That state of war continues in country, 170.

That public treaty is still in force, 170.

That same state of government still exists, 170.

That corporation still exists, 170.

That illicit iutercourse continues between parties, 176.

INDEX. 621

LAW AND FACT GENERALLY, rRESUMPTIONS OF — Continued.
That person's veracity is still good, 17G.
Tiiat woman continues unmarried, 17G.
That common law continues in force, 176.
That a person di.sal)led continues so, 17G.
That judge continues interested in property, 176.
That execution remains in sheriff's olllce, 177.
Reasons, 177, 178.
Sanity or insanity presumed to continue, 179.

Unless temporar)', 179.
Character and habit of person presumed to continue, 180.
That a gambler continues a gambler, 180.
That a person's character continues bad, 181.
Reasons, 181, 182.
Acts done in one case do not prove similar act done in another, 182.
That person enters into contract with A. no proof that he did

so withB., 182.
That person was negligent in one case no proof that he was so

in another, 182.
That sale to A. was made on condition no proof that sale to B.

was made on like condition, 182.
That A. sold diseased hog, no proof that he sold diseased beef,

182.
That credit was given to A. once, no proof that it was given to

A. again, 182.
That some of A.'s servants were paid, no proof that others were,

183.
That A. promised to pay B.'s debt no proof that he promised to
pay C.'s, 183.
Reasons, 183-184.
But person presumed to follow his habit, 184.
Illustrations, 184-18G.
Reasons, 180-187.
Future continuance not presumed, 187.
Illustrations, 188.
Reasons, 188.
Admission made docs not extend in futuro, 189.
Illustrations, 189.

Reasons, 189-100.
Presumption is not retrospective, 190.
Illustrations, 190.
Reasons, 190-101.
Presumption of continuance weaker than presumption of innocence,

101.
Life, love of presumed, 192.

A person found dead presumed to have accidentally died, 192.
Suicide not presumed, 192.
Reasons, 192, 193.

622 INDEX.

LAW AND FACT GENERALLY, PRESUMPTIONS OF — Continued. •
One proved alive presumed to continue alive, 193.
Illustrations, 193.

Reasons, 194-196.
Death may be proved by reputation, 197.
Or by hearsay, 197.

Or by fact inconsistent with continuance of life, 197.
Illustrations, 197.
Unmarried person presumed to have died childless, 197.

Aliter as to married person, 197.
Presumption that person left heir, 198.
Illustrations, 198.
Reasons, 198-199.
Death, presumption of, 200.

Absentee for seven years presumed to have died at end of that
term, 200.
Illustrations, 200-202.
English rule different, 201, note.

Reasons, 202-211.
Rule in the civil law, 211. ,

What is an " absentee," 212.
Illustrations, 212-213.
Reasons, 213-2U.
"Where removal is temporary, absence alone presumes death, 212.

Illustrations, 214.
But when permanent, inquiry at new abode must be proved, 212.
Illustrations, 214.
Reasons, 215.
"Persons who would naturally hear from him" include relatives and
strangers, 215.
Illustrations, 215.
Reasons, 215.
What is meant by " not being heard of," 21G.
Illustrations, 216.

Reasons, 216-221.
What is absentee's "residence, home or domicil," 222,
Illustrations, 222.
Reasons, 222.
Presumption arises that party has died within seven years —

1. When last heard of he was in desperate health, 222.

Illustrations, 222.
Reasons, 223.

2. Or within that time he embarked on vessel not since heard
of and overdue, 223.

Illustrations, 223, 224.
Reasons, 225-230.

3. Or within that time he encountered a specific peril, 230.

Illustrations, 2o0.

INDEX. G23

LAW AXD FxVCT GENERALLY, TRESUMPTIONS OF —Continued.

Specific peril does not mean ordinary perils of navigation,
230.
But means an unusual or extraordinary peril, 230, 232.
4, Or his habits, relations or necessities would have necessi-
tated liis communicating with his friends, 233.
Illustration.s, 233, 237.
Presumption of death at end of seven years does not arise —

1. Where it is improbable party even if alive would have been
heard of, 237.

Illustrations, 237.

Reasons, 237-239.

2. Where he is mentioned as alive in subsequent judicial pro-
ceedings, 237.

Illustrations, 230.
Survivorship, presumption of, 240.

No presumptiou of survivorship as to victims of common calam-
ity, 240.
Illustrations, 241-243.
Reasons, 243-246.
Exceptions, 24G.
niustrations, 240, 247.
Identity, presumption of, 248.

Identity of name raises presumption of identity of person —

1. Where there is similarity of residence, 248.

Illustrations, 250.

2. When there is similarity of trade, 248.

Illustrations, 250.
Reasons, 251.

3. When there is similarity of circumstances, 243.

Illustrations, 250.

4. Wliere name is an unusual one, 248.

Illustrations, 252.

Reasons, 253, 254.
No presumption where name is a common one or there are sev-
eral of same name at place, 248.
Illustrations, 254.
Family name and initials the same raises no presumption of
identity, 255.

Illustrations, 255.
Reasons, 255.
Two persons of same name occupy different positions and rela-
tions— presumption is that they are different persons, 250.
IlUistrations, 250.
Initials preceding name, construction of, 257.
When interest Is claimed, identity of name insufficient, 257.
Illustrations, 257.

624 IXDEX.

LAW AND FACT GENERALLY, PRESUMPTIONS OF — Continued.

Father and son or two persons of same name, presumption that
name means eldest, 258.
Illustrations, 258.

Reasons, 259, 200.
Aliter as to mother and daughter, 260.
Identity of things presumed from circumstances, 2G1.
Illustrations, 2G1.
Intent, presumptions of, 202.

Party presumed to intend natural consequences of his acts, 2G2.
That libeller intended to injure libelled, 2G2.
That party selling bad bread intended it to be eaten, 202.
That party conveying to creditor intended to prefer him,

262.
That person stopping iu house of ill-fame has intercourse,

262.
That person removes to another] State to obtain divorce,

203.
That person preferring creditor intended to, 263.
Reasons, 263-264.
Party presumed to intend legal consequences of his acts, 202.
That persons signing " as trustees " intended to bind them-
selves personally, 264.
That persons giving receipt under seal intended it to be
conclusive, 264.
Aliter as to receipt not under seal, 264.
That one forging another's name intended to defraud him, 264.
That person firing building intended to destroy it, 204.
That person giving note intends it to be paid in legal cur-
rency, 264.

Reasons, 265-206.
Act criminal per se presumed to be criminally intended, 266.
Illustrations, 266.

Reasons, 266-27 1.
But where specific intent required it must be proved, 271,
Illustrations, 271.
Reasons, 271.
Intent presumed from acts in absence of declarations, 272.
Illustrations, 272.

Reasons, 272-274
Unless party is physically or mentally unable, 272.
Illustrations, 274.

As when drunlvcn, 274.
Reasons, 274-275.
Person presumed to intend to do what is within his right and
power, and not what is beyond them, 276.
Illustrations, 276, 277.
Reasons, 277-278.

INDEX. G25

LAW AXB FACT GENERALLY, rRESUMPTTONS OF— Continued.
Nature, presumptions from tlie course of, 27'.).

Ttiat boy under fourteen c:in not commit crime, 27!).

Tliat woman committin;^ crime or tort in presence of husband

is coerced by him, 279.
That person hears statement in his presence, 279.
Unless ho is asleep or intoxicated, 279, note.
Tlmt husband is head of his family, 279.
That deed to wife is in custody of husband, 279.
That money advanced by parent to child is a loan, 279.
That improvements made ou wife's laud by husband are a gift

to her, 280.
That wife buys articles for home by consent of husband, 280.
That person is sane, 2S0.
Reasons, 280-302.

Other illustrations, 302.
That woman beyond certain age is incapable of child bearing
302, 303.
Person presumed to act in his own interest, 303.
That person accepts estates devised to him, 303.

Or conveyed to him, 303.
That charter is accepted by grantee, 304.

Tliat wife elects to take provision most beneficial to her, 304.
That person assents to arrangement for his benefit, 304.
That creditor assents to assignment, 304.
That a debt is paid rather than a loan made, 304.
That legacy to creditor is payment not a loan, 304.
That property given by parent to child is an advancement, 304.
That money given to another is a loan rather than a gift, 305.
That A. does not consent to arrangement not to his interest,

305.
That servant performs services properly, 305.
Reasons, 305-307.
Presumption of payment and discharge of obligations, 308.
Bonds presumed paid after twenty years, 308.
Illustrations, 315.
Reasons, 315.
Mortgages presumed paid after twenty years, 303.
Illustrations, 31G.
Reasons, 317-319.
Legacies presumed paid after twenty years, 308.
Illustrations, 319.
Reasons, 319.
Taxes presumed paid after twenty years, 303.

Illustrations, 3l'0.
Trust presumed executed after twenty years, 303.
Illustrations, 320.

40

Q2Q INDEX.

LAW AND FACT GENERALLY, PRESUMPTIONS OF — Continued.
Covenant presumed performed after twenty years, 308.
Illustrations, 320.
Reasons, 321.
Presumption of payment docs not arise from less than twenty years,
322.
Unless in conjunction witli ottier circumstances, 322.
Illustrations, 323.
Reasons, 323-327
Presumption from lapse of time may bo rebutted, 327.
Illustrations, 327.

Reasons, 327-330.
Statute of limitations can not be sliortened by lapse of time alone,
327.
Illustrations, 330.

Reasons, 330-332.
Presumption of payment may be rebutted, how —

1. By acknowledgment of debt by debtor, 333.

Illustrations, 333.

Reasons, 334, 33G.

2. By part payment, 333.

Illustrations, 336.
8. By known insolvency of debtor, 333.
Illustrations, 336.

Reasons, 337-340.

4. Or incapacity of debtor, 333.

Illustrations, 340.

5. Or by relation of the parties, 333.

Illustrations, 340.
Reasons, 341.

6. Or by situation of the parties, 333.

Illustrations, 342.

7. Or by intention of the parties, 333.

Illustrations, 342.
Reasons, 343.

8. Or by other facts explaining the delay, 333.
Illustrations, 343.

Presumption of payment other than by lapse of time will arise
from —

1. Production of receipt from creditor, 344.

Illustrations, 344.

Reasons, 344-346.

2. Possession by debtor of obligation, 344.

Illustrations, 346

Reasons, 347-349.

3. Cancellation of obligation, 344.

Illustrations, 34!).
Reasons, 448-350.

INDEX. G27

LAW AND FACT GENERALLY, rRESU>rPTIONS OF — Continued.

4. Payment of later debt, 344.

Illustrations, 350.

5. Passing of money after debt due, 344.

Illustrations, 351.

6. Custom of trade, 344.

Illustrations, 3o2.

7. Other circumstances, 344.
Illustrations, 353, 355.

Presumption does not arise —

1. When debtor might have gotobligation without paying it, 355.

Illustrations, 355.

2. Where debt paid was not debtor's alone, 355.

Illustrations, 350.
Presumption of payment is stronger than presumption of con-
tinuance, 85G.
But weaker than presumption of innocence, 35G.
Illustrations, 35(i.
Reasons, 357.
Foreign laws, presumption as to, 358.

Law of forum presumed to be the law of foreign state, 358.
Illustrations, 358-300.
Reasons, 3C0-3(;5.
Acts malum in se presumed to be crimes in foreign country, 3C5.

Illustrations, 305.
No presumption of identity of law as to country not subject to com-
mon law, 306.
Illustrations, 3G6.

Reasons, 30G-3G9.
Or tribe or nation uncivilized, 3GG.
Illustrations, 30'J.
Constructed of an adopted statute, 3G9.

Illustrations, 300.
" Law " means common and not statute law, 370.
Illustrations, 370, 372.

Reasons, 370, 373-370.
But not rule of common law which has exceptions, 370.
Illustrations, 379.
Alterations presumed to be made before execution of instrument,
381.

Illustrations, 381.

Reasons, 382-38G.
Exceptions, 387-380.
When this presumption docs not obtain —

1. Where alteration is in different hand, 389.
Illustrations, 300.
Reasons, 390-302.

Q-2S INDEX.

LAW AND FACT GENERALLY, PRESUIMPTIONS OF — Continued.

2. Or in difforeut ink, 389.

Illustrations, 393.

3. Or is in interest of party setting it up, 389.

Illustrations, 39-t.
Reasons, 394-396.

4. Or is suspicious ou its face, 389.

Illustrations, 39G.

5. Or execution of instrument is denied under oath, 389.

Illustrations, 397.
Reasons, 397-400.
Real property, presumptions in the law of, 403.
Possession and lapse of time, presumptions arising from, 403.

Possession of thirty years raises presumption of grant from

Crown, 404.
Grant of fisbing dam presumed after sixty years, 404.
Existence of link in title presumed from time, 404.
And conveyance pursuant to agreement, 404.
And grant of incorporeal hereditament, 405.
And grant of easement, 405.
And ouster of co-tenant, 405.
And payment of dower, 405.
And dedication of road, 405.
Reasons, 405-417.
Act of Legislature, existence of presumed from lapse of time, 417.
No presumption of grant where none exists to make it, 417.
Illustrations, 417.
Reasons, 417-419.
Owner and possessor presumed to have good title, 419.

Possession of deed raises presumption of delivery, 419.

So from lapse of time, 419.
Possession of land by grantor presumed to be for breach of con-
dition, 419.
Administration presumed from division of property, 419.
Regularity of sale under power, from lapse of time, 419.
And power of agent to make it, 419.
Persona,l property, possession of raises presumption of ownership,

420.
So these presumed owners —

Person in possession of vessel, 420.
Of sheep, 420.
Of bonds, 420,
Of note, 420.
Of calf, 420.

Shipping property by carrier, 420.
Reasons, 420-429.
Criminal cases, presumptions in, 433.

INDEX. 629

LAW AND FACT GENERALLY, PUESUMrTIONS OF — CoDtiuued.
Three famous things In law, 433.

The presumption of innocence, 433.
The reasonable doubt, 434.
The burden of proof, 434.
Innocent, person charged with crime presumed, 433.

That two of different sexes living together and cohabiting are
married, 433.
Aliter if marriage between them is prohibited, 434.
From taking thing no presumption of theft, 435.
Person marrying again, first husband or wife presumed dead

or divorced, 435.
That marriage was properly solemnized, 435.
That notice as required by statute was given, 43G.
That works, otherwise a nuisance, are necessary, 43G.
That physician's visits are necessary, 43G.
That person holding office has qualified, 436.
That sworn account is true, 43G.
That prosecution is for cause and not malicious, 436.
That statute is not violated, 43G.
Other illustrations, 438.
Reasons, 437-439.
Fruud never presumed, 439.
Illustrations, 430.

That sale was not fraudulent, 439.
That exchange of property was bona fide, 440.
That party did not misappropriate papers, 440.
That mortgage is valid, 440.
That administrator has made proper return, 440.
Reasons, 440-442.
Good character presumed, 442.

Presumption of innocence not taken away hy prima facie case, 445.
Illustrations, 445.
Reasons, 445-447.
Presumption of inuoctnce prevails over presumption of continu-
ance of life, 447.
Illustrations, 440.
Reasons, 448.
Presumption of innocence prevails over presumption of continuance
of things generally, 447.
Illustrations, 449.
Reasons, 450.

Exception, 450.
Presumption of innocence prevails over presumption of marriage, 447.

Illustrations. 451.
Presumption of innocence prevails over presumption of chastity, 447.
Illustrations, 451.
Reasons, 452.

G30 INDEX.

LAW AND FACT GEXERALLY, PKESUMPTIOXS OF — Continued.
Presumption of iuuoceuce weaker ttiau presumption of liuowledge
of law, 447.
Illustrations, 453.
Reasons, 454-457.
Presumption of innocence weaker than presumption of sanity, 447.
Illustrations, 457.
Reasons, 458.
The burden of proof of insanity, 459.
Presumption of innocence strengthened by relation of parties, 4C0.

As that murdered person is wife of suspected murderer, 400.
But presumption of innocence overcome by finding of indictment
except for purpose of trial, 4G0.
Illustration, 4C0.
Qualification to do act presumed, 401.

Therefore these presumptions arise —

That parties living together as husband and wife are mar-
ried, 401.
That consent to sale of liquor to prohibited party has been

given, 401.
That party has consent to do act requiring consent, 461.
That oflScer made report required by statute, 401.
Reasons, 402-405.
Aliter where proof is peculiarly in possession of defendant, 4G1.
As that bailiff has public license to do act, 465.
Other illustrations, 405.
Reasons, 405.
Even though it may involve defendant in proving his innocence,
461.
Illustration, 400.
Person presumed to intend natural consequences of his acts, 467.
Illustrations, 407.
Reasons, 468.
Where act criminal per se criminal intent presumed, 4G9.
Illustrations, 469.

Reasons, 469-472.
Unless specific intent required by statute, 472.
Illustration, 472.
Reasons, 473.

Dr. Wharton's illustrations, 474.
Possession may overthrow presumption of innocence, 478.

Illustrations, 478-481.
Knowledge may overthrow presumption of innocence, 478.

Illustrations, 478-481.
Motive may overthrow presumption of innocence, 478.

Illustrations, 478-481.
Other crime tlian that charged can not be proved against prisoner, 481.
Illustrations, 481-483.

INDEX.

G31

LAW AND FACT GENERALLY, PRESUMPTIONS OF — Continued.

As that prisoner had teudeucy to coininit crime of kind charged,

483.
That person indicted for raping T. had raped L., 483.
That person indicted for poisoning his wife liad been intimate

with woman whose husband had been poisoned, 483.
That one indicted for riot had participated in a previous riot,

483.
That person indicted for forging A.'s name liad forged B.'s, 483.
That one indicted for hiring A. to steal had hired him to forge,

483.
That person indicted for stealing from B. had assaulted him,

483.
That person indicted for stealing a horse had stolen money, 483.
That person charged with performing abortion on A. had done so

onB., 483.
That person charged with murder of illegitimate child had com-
mitted rape, 484.
That woman charged with killing one child had killed another,
484.

Reasons, 484, 485.
Other instances, 48G.
To prove knowledge or intent, another crime may be shown, 487.
Illustrations, 487.
Reasons, 487,488.
To prove motive, another crime may be shown, 487.

Illustrations, 488.
To prove that crime was not accidental, separate crime may be
shown, 488.

Illustrations, 489.
Reasons, 490.
lies gestce may be proved though another crime, 490.
Illustrations, 490.

Reasons, 491, 492.
Guilt, presumptions of, 493-534.

Motive, guilt presumed from, 493.
Methods of showing motive, 495.
Desire of gain, 495.
Illustrations, 49C.
Reasons, 49G-498.
Gratification of passion, 493.
Illustrations, 498.

Reasons, 499-505.
Preservation of reputation, 495.
Illustrations, 505.
Opportunity raises presumption of guilt, 50G.
Illustrations, 500.

G32 INDEX.

LAW AND FACT GENEEALLY, PRESUMPTIONS OF — Continued.
Unless another had better opportunity, 60G.
Illustrations, 606.
Former attempt raises presumption, 507.
Illustrations, 507.
Reasons, 508.
Preparations raise presumption, 608.
To accomplish crime, 508.

Illustrations, 508.
To prevent discovery, 503.

Illustrations,, 50'J.
To aid escape, 508.

Illustrations, 509.
To avert suspicion, 508.
Illustrations, 509.
Reasons, 510.
Aliter where preparations innocent, 610.

Illustrations, 610.
Or for another crime, 510.

Illustrations, 611.
Or crime frustrated or abandoned, 610.
Illustrations, 611.
Threats raise presumption of guilt, 511.
Illustrations, 511.
Reasons, 512.
Aliter Avhen another may have executed them, 512.
Illustrations, 513.
Possession of means of committing crime raises presumption, 513.
Illustrations, 613.
Reasons, 614.
Varies as to occupation, character, or sex of prisoner, 613.
Illustrations, 515.
Possession of fruits of crime raises presumption, 515.
Illustrations, 516.
Reasons, 516.
Recent possession in larceny or robbery, 518.
Illustrations, 518.

Reasons, 619-522.
Reasonable explanation of possession overthrows presump-
tion, 522.
Illustrations, 522.
Reasons, 622.
Unless explanation inconsistent, 522.
Illustrations, 623.
Reasons, 523.
What is or is not "recent," 624.
Kind of property a test, 624.

INDEX. C33

LAW AND FACT GENERALLY, TRESUMrTIONS OF — Coulinued.
Illustrations, 525.

Reasons, 52(;-529.
Change in life and circumstances of prisoner, 520.

Illustrations, 629.
False or contradictory accounts by prisoner, 530.
Illustrations, 630.

Reasons, 531-533.
Attempt to tiiwart investigation, 633.

Illustrations, 533.
Fear raises presumption of guilt, 534.
Illustrations, 53-t.
, Reasons, 534-53G.

Aliter ■when fear may be on account of another crime, 53-t.
Illustrations, 63(;.
Flight raises presumption of guilt, 537.
Illustrations, 637.
Reasons, 637.
Attempts to escape raise presumption, 537.
Illusirations, 537.
Reasons, 538.
Aliter ^vhen it is for another crime, 537.
Illustrations, 539.
Destruction of evidence raises presumption, 539.

Illustrations, 641.
Concealment of evidence, 639.

Illustrations, 641.
Fabrication of evidence, 539.
Illustrations, 542.
Reasons, 543.
Silence -n-heu interrogated raises presumption, 545.
Illustrations, 545.
Reasons, 546.
Unless in judicial interrogation, 545.
Illustrations, 549.
Reasons, 649.
Failure to produce evidence raises presumption, 549.
Illustrations, 651.
Reasons, 551.
Prisoner declining to testify in his own behalf, 651.
Rules as to presumptions, 55(j-5'J0.
Definition of "presumption," 556.
Definition of "presumption of law," 556.
Definition of presumption of fact, 55G.
Illustrations, 559-5C0.
Reasons, 660-509.
Presumption must bo based on fact and not on inference, 5C9.
Illustrations, 5C9.
Reasons, 670-575.

G34 IXDEX.

LAW AND FACT GENERALLY, PRESUMPTIONS OF — Contiuuecl.
Presnmptiou can uot contradict facts, 57G.

Illustrations, 576.
Presumptions are not continuous, 579.
Illustrations, 579.
Reasons, 579.
Presumptions are not retroactive, 579.
Illustrations, 580.
Reasons, 581.
Conflicting presumptions, 582-590.
Of payment and continuance, 582.

Illustrations, 582.
Of innocence and payment, 582. ,

Illustrations, 582.
Reasons, 582.
Of innocence and continuance of life, 582.
Illustrations, 583.
Reasons, 584.
Of innocence and continuance of things, 582.
Illustrations, 585.
Reasons, 585.
Of innocence and marriage, 582.

Illustrations, 587.
Of innocence and chastity, 582.
Illustrations, 587.
Reasons, 587.
Of knowledge of law and innocence, 582.

Illustrations, 589.
Of sanity and innocence, 582.
Illustrations, 589.

LAW, KNOWLEDGE OF.

See ItXOWLEDGE.

LEGACIES.

Presumed paid after twenty years, 808.
Illustrations, 319.
Reasons, 319.

LEGISLATURE.

Legislature presumed to have acted properly, 58.
That bill was passed constitutionally, 58.
That verbal changes in bill were authorized, 58.
That Legislature intended to omit words in statute, 58.
Statute presumed to be constitutional, 58.
That municipal ordinance is regular, 58.
Act of Legislature, existence of, presumed from lapse of time,

417.
No presumption of grant where none exists to make it, 417.
Illustrations, 417.
Reasons, 417-419.

IXDEX. C35

LEGITIMACY.

rresmiiption that ever)' person is legitimate, 107.

Illustrations, lO'J.
Old rule on the subject, 108,
Rule relaxed in modern times, 109-112.

Presumption of sexual intercourse from proof of access, 114.
Evidence of rumor of illegitimacy iusuUicieut, 115.
Proof of access not conclusive, 115.
Conduct of supposed parent towards child relevant, IIC.
That -wife lived in open adultery relevant, 117.
Presumption holds where parties are living apart by consent,
117.

Aliter when by decree of court, 117.
Declarations of A\ife inadmissible, 118.
Legitimacy of child can not be contested by mother or heirs, 113.

LETTERS.
See CucKSE of Business.

LIBEL.

See IXTEXT.

LIFE.
See Death; ScrR\^voRS^IP.
Love of life presumed, 192,

A person found dead presumed to have accidently died. 192.
Suicide not presumed, 192.

Reasons, 192, 193.
One proved alive presumed to continue alive, 193.
Illustrations, 193.
Reasons, 19i-196.

LITE, CHANGE IN.
See Habits.

LIMITATIONS.
See PAyMI:^•T.

LOAN.

See INTEREST.

MARRIAGE.
See INNOCEXCE (Ch'il Cases).
Presumption of, 105.

That marriage ceremony was properly performed, 100.

MEANS OF COMMITTING CRIME.

Possession of means of committing crime raises presumption, 513.
Illustrations, 513.
Reasons, 51 •4.
Varies as to occupation, character, or sex of prisoner, 513.
Illustrations, 515.

636 INDEX.

MORAL DUTY.

Performance of, not presumed, 81.

MORTGAGES.
See Course of Business; Documents.
Presumed paid after twenty years, 308.
Illustrations, 316.
Reasons, 317-319.

MOTIVE.

May overthrow presumption of innocence, 478.

Illustrations, 478—181.
To prove motive, another crime may be shown, 487.
Illustrations, 488.
Guilt presumed from, 493.
Methods of showing motive, 495.
Desire of gain, 495.
Illustrations, 496.
Reasons, 496-498.
Gratification of passion, 495.
Illustrations, 498.
Reasons, 499-505,
Preservation of reputation, 495.
Illustrations, 605.

NAMES.
See Identity.

NATURE, COURSE OF.

Life, love of presumed, 192.

A person found dead presumed to have accidentally died, 192.
Suicide not presumed, 192.
Reasons, 192, 193.
Nature, presumptions from the course of, 279.

That boy under fourteen can not commit crime, 279.

That woman committing crime or tort in presence of husband

is coerced by him, 279
That person hears statement in his piesence, 279.
Unless he is asleep or intoxicated, 279, note.
That husband is head of his family, 279.
That deed to wife is in custody of husband, 279.
That money advanced by parent to child is a loan, 279.
That improvements made ou wife's land by husband are a gift

to her, 280.
That wife buj's articles for home by consent of husband, 280.
That person is sane, 280.
Reasons, 280-302.

Other illustrations, 302.
That woman beyond certain age is incapable of child bearing,
302, 303.

INDEX. C37

NATURE, COITRSE OF— X^ontinued.

Person presumed to act iu his own interest, 303.
That person accepts estates devised to him, 303.
Or conveyed to him, 303.
That charter is accepted by j^rantee, 30-t.

That wife elects to take provision most beneficial to her, 304.
That person assents to arrangement for his benefit, 304.
That creditor assents to assignment, 304.
That a debt is paid rather tlian a loan made, 304.
That legacy to creditor is payment not a loan, 304.
That property given by parent to child is an advancement, 304.
That money given to anotlier is a loan rather than a gift, 305.
That A. does not consent to arrangement not to his interest, 305.
That servant performs services properly, 305.
Reasons, 305-307.

NECESSITY.
See I>rNOCE>XE (^Civil Cases.)

NEGLIGENCE.

Negligence not presumed, 102.

That fire was not negligent, 102.

That vessel was seaworthy, 102.

Alitcr, that boiler which exploded was defective, 102.

That blast was not properly covered, 103.

That animal on railroad track was negligently killed, 103.

NEGOTIABLE PAPER.
See Course of Business.
Negotiable paper, presumed to be regularly negotiated and held, 77.
That holder of note is bona fide holder, 77, 78.
That note is transferred on day due, 78.
That indorsement was made before note was due, 78.
Reasons, 78.
Except when there is fraud, duress or illegality, 79.
Illustrations, 79,
Reasons, 80.

NON-RESIDENCE.
See DosuciL.

. NOTARY.

See Official Acts.

OFFICERS.
See also Offical Acts,
Private officers presumed to be properly appointed and to do their
duty, CO.
That cashier's bond was approved, 60.
That corporation president had power to indorse note, 60.
That officers of corporation were properly appointed, 00.

638 INDEX.

OFFICERS — Coutinued.

That attorneys for State had authority of Governor, Gl.
That corporation assents to suit brought in its name, 61.
That corporation's seal is attached to contract by authority,

61.
That officer acts without malice, 01.
That quorum of members were present at meeting, CI.
Reasons for rulings, 61-66.
Office, holding of, presumed to continue, 172.
Illustrations, 175.

OFFICIAL ACTS.
See also Officers.
Official authority, regularity of, presumed, 47.
That officer was properly appointed, 49
That attorney is properly enrolled, 49.
That vestry clerlj is properly appointed, 49.
So as to pound-keeper, 49.
As to collector of taxes, 49.
As to church warden, 50.
As to master in chancery, 50.
That soldier is attested, 50.

That surrogate has authority to administer oath, 50.
That person is officer of post-office, 50.
That trustees have authority, 50.
That notary has power to take affidavits, 50.
That attorney has authority from client, 50.
Reasons for these rulings, 50.
Officers, presumptions that, do their legal duty, 53.
Illustrations in the different States, 54-55.
That officer made entries, 54.
That vote of council was unanimous, 55.
That officer was elected by ballot, 55.
That affidavit was made in court, 56.
That register acted on proper evidence, 56.
That levy was made by sheriff, 56.
That seal is good without wax, 56.

That appearance was entered by authorized attorney, 56.
The proclamation was posted by order of commander, 66.
That proper notice was given by officers, 56.
That meeting of corporation was properly adjourned, 57
That fee charged is legal, 57.
That summons was served in apt time, 67.
That administrator has made proper settlement, 67.
That writ ^fSi3 properly returned by sheriff, 57.
That public surveyor is qualified, 57.
That judgment was properly recorded by recorder, 58-
That land was appraised before being sold, 68.
That taxes were paid by testator, 58
Reasons for the rulings, 59.

INDEX. G39

OPPORTUNITY.

To commit crime raises presumption of guilt, COG.

Illustrations, 50(>.
Unless another had better opportunity, 50G.

Illustrations, 50G

OTHER CRIMES.

Other crime than that charged can not be proved against prisoner,
481.

Illustrations, 481-483.

As tliat prisoner had tendency to commit crime of kind charged,

483.
That one indicted for riot had participated in a previous riot,

483.
That person indicted for raping T. had raped L., 483.
That person indicted for poisoning his wife had been intimate

•with woman whose husband had been poisoned, 483.
That person indicted for forging A.'s name had forged B.'s,483.
That one indicted for hiring A. to steal had hired him to

forge, 483.
That person indicted for stealingfrom B. had assaulted him, 483.
That person indicted for stealing a horse had stolen money, 483.
That person cliarged with performing abortion on A. had done

so on B., 483.
That person charged with murder of illegitimate child had com-
mitted rape, 484.
That woman charged with killing one child had killed another,

484.

Reasons, 484, 485.

Other instances, 48G.
To prove knowledge or intent, another crime may be shown,

487.
Illustrations, 487.

Reasons, 487, 488,

To prove motive, another crime may be showTi, 487.

Illustrations, 488.

To prove that crime was not accidental, separate crime may be

shown, 488.

Illustrations, 489.

Reasons, 490.

Res gestce may be proved though another crime, 400.

Illustrations, 490.

Reasons, 491, 492.

OWNERSHIP.
See Possession; Real PRorERXY; Chattels.

PARENT AND CHILD.
See Natuke, Coukse of.

640 INDEX.

PARENTAGE.
See Legitimacy.

PAETNERSHIP.

See, also, Course op BusrsrEss.
Partnership presumed to continue, 172.
Illustrations, 175.

PAT^rENT.

Presumption of payment and discharge of obligations, 308.
Bonds presumed paid after twenty years, 308.
Illustrations, 315.
Reasons, 315.
Mortgages presumed paid after twenty years, 308.
Illustrations, 316.
Reasons 317-319.
Legacies presumed paid after twenty years, 308.
Illustrations, 319.
Reasons, 319.
Taxes presumed paid after twenty years, 308.

Illustrations, 320.
Judgments presumed paid after twenty years, 308.

Illustrations, 320.
Trust presumed executed after twenty years, 308.

Illustrations, 320.
Covenant presumed performed after twenty years, 308.
Illustrations, 320.
Reasons, 321.
Presumption of payment does not arise from less than twenty years,
322.
Unless In conjunction with other circumstances, 322.
Illustrations, 323.

Reasons, 323-327.
Presumption from lapse of time may be rebutted, 327.
Illustrations, 327.
Reasons, 327-330.
Statute of limitations can not be shortened by lapse of time alone, 327.
Illustrations, 330.

Reasons, 330-332.
Presumption of payment may be rebutted, how —

1. By acknowledgment of debt by debtor, 333.

Illustrations, 333.
Reasons, 334, 33C.

2. By part payment, 333.

Illustrations, 336.

3. By known insolvency of debtor, 333,

Illustrations, 336.
Reasons, 337-310.

INDEX. 641

PAYMENT — Continued .

i. Or incapacity of debtor, 333.

Illustrations, 340.
6. Or by relation of tlie parties, 333.
Illustrations, 340.
Reasons, 341.

6. Or by situation of the parties, 333.

Illustrations, 342.

7. Or by intention of the parties, 333.

Illustrations, 342.
Reasons, 343.

8. Or by other facts explaining the delay, 333.

Illustrations, 343.
Presumption of payment other than by lapse of time will arise
from —

1. Production of receipt from creditor, 344.

Illustration, 344.

Reasons, 344-346.

2. Possession by debtor of obligations, 344.

Illustrations, 316.

Reasons, 347-349.

3. Cancellation of obligation, 344.

Illustrations, 349.
Reasons, 349-350.

4. Payment of later debt, 344.

Illustrations, 350.

5. Passing of money after debt due, 344.

Illustrations, 351.

6. Custom of trade, 344.

Illustrations, 352.

7. Other circumstances, 344.

Ulustralious, 353, 355.
Presumption does not arise —

1. When debtor might have got obligation without paying it,
355.

Illustrations, 355.

2. Where debt paid was not debtor's alone, 355.

Illu-,tratlons, 356.
Presumption of payment is stronger than presumption of couliuu-
ance, 356.

But weaker than presumption of Innocence, 356.
Illustrations, 356.
Reasons, 357.
PEN.VLTY.
See Fraud.

PERSONAL PRORERTY
See Chattels.

41

G42 INDEX.

rOSSESSION.
See Suit; L.vkceny; Chattels; Real Prorerty.
Possession or ownersliip of property presumed to continue, 163.

Reasons, 163.
Non-possession or loss of property presumed to continue, 153, 164.

Illustrations, IG-i,
Possession may overthrow presumption of innocence, 478.
Illustrations, 478-481.

PREPARATIONS.

As to crime, raises presumption of guilt, 608.
To accomplish crime, 608.

Illustrations, 508
To prevent discovery, 508.

Illustrations, 509.
To aid escape, 608.

Illustrations, 509.
To avert suspicion, 508.

Illustrations, 509.
Reasons, 510.
Aliter where preparations innocent, 510

Illustrations, 510.
Or for another crime, 610.

Illustrations, 611.
Or crime frustrated or abandoned, 510.

Illustrations, 611.

PRESUMPTIONS.
Doflued, 556.

Must be based on fact and not on inference, 569.
Illustrations, 509.

Reasons, 570-575.
Can not contradict facts, 676.

Illustrations, 676.

Are not continuous. 579.

Illustrations, 679.

Reasons, 579.

Are not retroactive, 579.

Illustrations, 580.

Reasons, £81.

PRESUMPTIONS OF FACT.
Defined, 556.

PRESUMPTIONS OF LAW.
Defined, 556.

PRIVILEGED COMMUNICATIONS.
See Witnesses

INDEX. 643

REAL PROPERTY.

Real property, presumptions in the law of, 403.

Possession and lapse of time, presumptions arising from, 403.

Possession of thirty years raises presumption of grant from

Crown, 404.
Grant of fishing dam presumed after sixty years, 404.
Existence of link in title presumed from time, 404.
And conveyance pursuant to agreement, 404.
And grant of incorporeal hereditament, 405.
And grant of easement, 405.
And ouster of co-tenant, 405.
And payment of dower, 405.
Ajid dedication of road, 405.
Reasons, 405-417.
Act of Legislature, existence of presumed from lapse of time, 417,
Ko presumption of grant where none exists to luake it, 417.
Illustrations, 417.

Reasons, 417-419.
Owner and possessor presumed to have good title, 419.

Possession of deed raises presumption of delivery, 419.

So from lapse of time, 419.
Possession of land by grantor presumed to be for breach of

condition, 419.
Administration presumed from division of property, 419.
Regularity of sale under power, from lapse of time, 419
And power of agent to make it, 419.

RECENT POSSESSION.

Recent possession in larceny or robbery, 518.
Illustrations, 518.

Reasons, 519-522.
Reasonable explanation of possession overthrows presumption, 622.
Illustrations, oL'2.
Reasons, 522.
Unless explanation inconsistent, 522.
Illustrations, 523.
Reasons, 523.
What is or is not " recent," 624.
Kind of property a test, 624.
Illustrations, 525.

Reasons, 52G-529.

REGULARITY.
See JiDiciAL Acts; Official Acts; Officers; Legislature;
Course of Business.

RES GEST.E.

Ees GentcB may be proved though another crime, 400.
Illustrations, 490.

Reasons, 491, 492.

644 INDEX.

RESIDENCE.
See DoMiciL.

ROBBERY.
See Recent Possession.

SALES.
See CotJRSE of Business.

SANITY.
See also Insanity.
Presumption of, 280.

SERVICES.

Services, agreement to pay for presumed, 74.

To pay medical services rendered, 74.
But not where parties are near relatives or of the same family, 74.
Illustrations, 75.'
Reasons, 75-77.

SERVANT.
See Services; Course of Business.

SILENCE.

Silence when interrogated raises presumption of guilt, 545.
Illustrations, 545.
Reasons, 546,
Unless in judicial interrogation, 545.
Illustrations, 549.
Reasons, 549.
Failure to produce evidence, raises presumption, 549.
Illustrations, 551.
Reasons, 551.
Prisoner declining to testify in his own behalf, 551.

SOLVENCY.

Solvency or insolvency presumed to continue, 172.
Illustrations, 173, 174.

SPOILS.
See Fruits of Crime.

SPOLIATION.

Spoliator, presumptions against a, 120.

Omission of party to testify, presumption arises against him, 120.
Of seaman who had charge of light on vessel, 121.
Of party who is charged with fraud, 121.
Refusal to produce deed on which party claims, 121.
Or to produce letter sent to one, 121.
Or to produce book claimed as private one, 122.
Agreement not produced presumed stamped, 122.
Invoices not produced, goods presumed undervalued, 122.

INDEX. 645

SPOLIATION — Continued.

Refusal to produce building plan or to allow expert to ex-
amine building, 122,
Contents of bottles of liquor not proven, presumption that

it was the cheapest of licjuor, 122.
Amount of note not proved, presumption that it was of the

smallest denondnation, 122.
Price of cattle received of owner not shown, presumption

that it was the highest, 123.
Witness refusing to explain facts in her knowledge, 123.
And refusing to produce books, 123.

Four out of Ave attorneys of a party deny a fact, presump-
tion that the other could not, 123.
Reasons, 123-134.
As to annoyance from passing trains, 134
Exceptions where evidence is not his power, 120, 135.
As where another has his muniments of title, 135.
Or a witness is equally within the call of both sides, 135.
Or there is no proof that he has better evidence, 135.
Reasons, 135-137.
Exception when evidence is privileged, 137.

As confidential communication between attorney and client, 137.
Presumption arising from non-production of evidence does not-
relieve opposite party from proving his case, 137.
Illustrations, 137.

Reasons, 138-140.
Alteration, suppression, falsification or manufacturing evidence, pre-
sumption from, 140.
Goldsmith taking stone from socket and converting it, stone"

presumed to be of the highest value and water, 140.
Party having part of stolen diamonds presumed to have all, 141.
Executor altering papers of testator, 141.
Husband suppressing deed of wife, 141.

Party i)reveuting value of goods being shown mulct in high-
est, 141.
Destruction of deed by claimant, 141.
And of contract of ^ale by indorser, 142.
Carrying off mortgaged goods, 142.
Destruction of bond by obligor, 142.
Destruction of evidence of payment by party, 142.
Kidnaping of heir to estate by claimant, 142.
Manufacturing of evidence by party to a cause, 143.
Falsity of seal on certificate, 143.
Alterations in account book by creditor, 143.

Reasons, 143-148.
Trustee failing to preserve his vouchers, 148.
Aijjnt of candidate destroyin;; ids accounts, 148.
Coucealmeut of books by ollicers of corporations, 148.

V

G46 INDEX.

SPOLIATION— Continued.

Destruction of vouchers and invoices by partner, 149.

Reasons, 148-149.
Presumptions in international law, 150-151.
Spoliation aloue may defeat claim but can not sustain one, 152, 153.
Presumption against spoliator does not arise — .

1. AVhere documents otherwise proved, 154.

Illustrations, 154.

2. Or spoliation open and for cause, 154.

Illustrations, 154.
Does not extend beyond thing taken or suppressed, 155.
Presumption is not conclusive, 15G.
Destruction voluntarily of document precludes spoliator from giving
secondary evidence, 157.
A. burns up B.'s note to him, A. can not sue B. on it, 157.
Person burning up letter can not prove its contents, 157.
Party mutilating paper can not prove its contents, 157.

Illustrations and reasons, 157-159.
Useless destruction was the result of mistake or accident, 159.

Illustrations, 159.

Reasons, 159, 160.
Attempt to thwart investigation, 533.

Illustrations, 533.
Destruction of evidence raises presumption, 639.

Illustrations, 541.
Concealment of evidence, 539.

Illustrations, 541.
Fabrication of evidence, 539.

Illustrutions, 542.
Reasons, 543.

STATE.
See roREiGN Laws.

STATUTES.
See Legislature.

SUICIDE.
See Lite.

SLT^PRESSION OF EVIDENCE.
See Spoliation.

SURVIVORSHIP.

Survivorship, presumption of, 240.

No presumption of survorship as to victims of common calamity,
240.

Illustrations, 241-243.
Reasons, 243-246.
Exceptions, 246.

Illustrations, 24G, 247.

INDEX. C17

TAXES.

Taxes presumed paid after twenty years, 308.
lUustrutious, o20. "

THREATS,

liaise presumption of guilt, 511.
Illustrations, 511.
Reasons, 512.
Aliter when another may have executed them, 612.
Illustrations, 513.

TITLE.
See Real Property; Cuattels.

TRUSTS.

Presumed executed after twenty years, 308.
Illustrations, 320.

USURY.
See Fraud.

VALUE,

Invoices not produced, pjoods presumed undervalued, 122.

Refusal to produce building plan or to aUow expert to examine build-
ing, 122.

Contents of bottles of liquor not proven, presumption that it was
the cheapest of liquor, 122.

Amount of note not proved, presumption that it was of the smallest
denomination, 122.

Price of cattle received for owner not shown, presumption that it was
the highest, 123.

WITNESSES.

No presumption that party not called as witness has knowledge of
facts, 23.

Illustrations, 23,
Omission of party to testify, presumption arises against him, 120.
Of seaman who had charge of light on vessel, 121.
Of party who is charged with fraud, 121.
Refusal to produce deed on which party claims, 121.
Or to produce letter sent to one, 121.
Or to produce book claimed as private one, 122.
Agreement not produced presumed stamped, 122.
Invoices not produced, gooiis presumed undervalued, 122.
Refusal to produce building plan or to allow expert tw examine

building, 122.
Contents of bottles of liquor not proven, presumption that it
was the cheapest of liquor, 122,

648 INDEX.

WITNESSES — Continued.

Amount of note not proved, presumption tliat it was of the smallest

denomination, 122.
Price of cattle received for owner not shown, presumption that it

was the highest, 123.
Witness refusing to explain facts in her knowledge, 123.
And refusing to produce books, 123.

Four out of five attorneys of a party deny a fact, presumption that
the other could not, 128.
Reasons, 123-134.
As to annoyance from passing trains, 134.
Exceptions where evidence is not his power, 120, 135.
As where another has his muniments of title, 135.
Or a witness is equally within the call of both sides, 135.
Or there is no proof that he has better evidence, 135.
Reasons, 135-137.
Exceptions when evidence is privileged, 137.

As confidential communication between attorney and client, 137,
Presumption arising from non-production of evidence does not re-
lieve opposite party from proving his case, 137.
Prisoner declining to testify in his own behalf, 551.
Illustrations, 137.
Reasons, 138-140.

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