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 The law of presumptive evidence, includin 
 
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THE LAW 
 
 OT 
 
 Presumptive Evidence, 
 
 INCLUDING PEESUMPTIONS BOTH OF LAW AND 
 
 OF FACT, AND THE BURDEN OF PROOF BOTH 
 
 IN CIVIL AND CRIMINAL CASES, 
 
 REDUCED TO RULES. 
 
 JOHN" D. JjAWSOT^ 
 
 Author of a similar work on *' The Law of Expert and Opinion Evidence." 
 
 SAN FRANCISCO: 
 A. L. BANCROFT & CO., 
 
 Law Book Publishers, Booksellers, and Stationers. 
 1885. 
 
Entered according to Act of Congress, in the year 18S5, by 
 
 JOHN 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 
 law. The illustrations are all taken from decided cases and 
 are, 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) 
 
1Y PEEFACE. 
 
 the American Law Review of November, 1883, says of the 
 plan 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 /east 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." 
 
 " What, 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 
 
 thirty-nine 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 Presumptions of Knowledge of Law and Eact . . 6-24 
 
 PART II. 
 
 THE PRESUMPTIONS OE REGULARITY AND INNOCENCE. 
 
 Chapter II. 
 The Regularity op Judicial Acts 27-63 
 
 Chapter III. 
 The Regularity of Official Acts 64-66 
 
 Chapter IV. 
 The Regularity of Business and Unofficial Acts . . 67-92 
 
 Chapter V. 
 The Presumption of Innocence in Civil Cases . . . 93-102 
 
 Chapter VI. 
 The Presumption of Marriage and Legitimacy . . . 104-119 
 
 Chapter VII. 
 
 The Presumption Against a Spoliator 120-160 
 
 (v) 
 
VI TABLE OF CONTENTS. 
 
 PAKT III. 
 
 THE PRESUMPTIONS OP CONTINUANCE AND UNIFORMITY. 
 Chapter VIII. 
 
 PAGE 
 
 The Presumption of the Continuance of Things Generally 163-191 
 
 Chapter IX. 
 The Presumption of Life 192-199 
 
 Chapter X. 
 The Presumption of Death 200-239 
 
 ChapterXI. 
 The Presumption of Survivorship 240-247 
 
 Chapter XII. 
 The Presumption of Identity 248-261 
 
 Chapter XIII. 
 The Presumption of Intent 262-278 
 
 Chapter XIV. 
 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 . . . 858-380 
 
 Chapter XVII. 
 The Presumptions From the Alteration of Instruments 381-401 
 
TABLE OF CONTENTS. Vll 
 
 PART IV. 
 
 THE PEESTJMPTIONS IN THE LAW OF EEAL PEOPEETY. 
 
 Chapter XVIII. 
 
 PAGE 
 
 The Presumptions from Possession and Lapse of Time . 403-429 
 
 PAET V. 
 
 THE PEESUMPTIONS IN CEIMINAL CASES. 
 
 Chapter XIX. 
 The Presumptions in Favor of Innocence .... 432-402 
 
 Chapter XX. 
 The Presumptions in Disfavor of Innocence . . . 493-552 
 
 PART VI. 
 
 GENERAL EULES. 
 
 Chapter XXI. 
 The General Eules as to Presumptions . . . 555-590 
 
TABLE OF RULES. 
 
 1139 rules — 122 main, 1 7 sub.} 
 
 PAET I. 
 
 THE PRESUMPTIONS OF KNOWLEDGE. 
 
 CHAPTER I. 
 
 The Presumptions or Knowledge op Law and Fact. 
 
 Rule 1. — Every one is presumed to know the law 
 when ignorance 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 EULES. 
 
 PAGE 
 
 Rule 5. — The burden of proof is on the party to show 
 a material fact of which he is best cognizant ... 20 
 
 Rule 6. — The burden of proof of notice to a bona fide 
 purchaser is on the person alleging such notice . . 23 
 
 Rule 7. — There is no presumption that a person not 
 called as a witness has any knowledge of facts . . 23 
 
 PAET II. 
 
 THE PRESUMPTIONS OF REGULARITY A!NT> ESTNO- 
 
 CENCE. 
 
 CHAPTER 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 pre- 
 sumed 27 
 
 Rule 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 
 
 Rule 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 
 
 Eule 11. — Jurisdiction of the person beyond the ter- 
 ritorial limits of a court of general powers can not be 
 presumed 45 
 
 Eule 12. — And a presumption can not contradict 
 facts averred or proved 46 
 
 CHAPTER III. 
 
 The Eegularity of Official Acts. 
 
 Eule 13. — The presumption is that one who is proved 
 to have acted in an official capacity possessed the 
 necessary and proper authority 46 
 
 Eule 14. — The presumption is that public officers do 
 as the law and their duty requires them .... 54 
 
 Sub-Eule 1. — And the presumption in Rules 13 and 
 14 prevails as to the authority and acts of private 
 officers 60 
 
 CHAPTER IV. 
 
 The Eegulaeitt of Business and Unofficial Acts. 
 
 Eule 15. — In commercial transactions the presump- 
 tion is that the usual course of business was followed 
 by the parties thereto 67 
 
 Sub-Eule 1. — Persons engaged in a particular trade 
 are presumed to be acquainted with the value of arti- 
 cles bought and sold therein, the names under which 
 they go in such trade, and the general customs obtain- 
 ing and followed there 72 
 
Xll TABLE OF RULES. 
 
 PAGE 
 
 Sub-Rule 2. — An agreement to pay for services ren- 
 dered and accepted is presumed, unless the parlies 
 are members of the same family or near relatives . 75 
 
 Sub-Rule 3. — Negotiable paper 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 . . .11 
 
 Rule 16. — The presumption is that any act done was 
 done of right and not of wrong 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 instruments, but are no evidence of 
 collateral facts 89 
 
 CHAPTER V. 
 
 The Presumption 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 OE BULES. X1U 
 
 PAGE 
 
 Sub-Rule 1 . — The law presumes the validity of a mar- 
 riage ceremony, and that every person is legitimate . 106 
 
 Rule 21. — A person proved to have been born dur- 
 ing the continuance of a valid marriage 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. 
 
 The Presumption Against a Spoliator. 
 
 Rule 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 
 does 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 u 
 to the case, or it was his duty to preserve it, — omnia 
 prcesumuntur contra spoliatorem 140 
 
 Rule 25. — The fact of spoliation standing alone may 
 defeat a claim, but of itself can not sustain a claim . 152 
 
XIV TABLE OP RULES. 
 
 PAGE 
 
 Eule 26. — 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 
 
 Eule 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 in. 
 
 THE PRESUMPTIONS OF CONTINUANCE AND UNI- 
 FORMITY. 
 
 CHAPTER VIII. 
 
 The Presumption op the Continuance op Things Gen- 
 erally. 
 i 
 
 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 ^gg 
 
TABLE OF EULES. XV 
 
 PAGE 
 
 Rule 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, once 
 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 was 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 exists and need 
 not be proved, does not dispense with proof of the 
 existence of that fact subsequent to the date of the 
 admission 189 
 
 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 EULES. 
 
 CHAPTER IX. 
 The Pkesumftion of Life. 
 
 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 maybe proved by reputation, by 
 hearsay, or by evidence of facts inconsistent with the 
 theory of the existence of life 197 
 
 Eule 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 Peesumptiok 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 RULES. XVU 
 
 PAGE 
 
 Kule 44. — An "absentee" within Eule 43 is one 
 who has left his residence, home, or domicil, either 
 temporarily (intending to return) or permanently 
 (intending 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 
 
 Eule 45. — " Persons who would naturally have heard 
 of him " within Eule 43 is not confined to a particu- 
 lar class ; they may be relatives or strangers . . . 215 
 
 Eule 46. — "Not been heard of" within Eule 43 
 means that none of the " persons" referred to in 
 Eule 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 
 
 Eule 47. — The absentee's " residence, home or domi- 
 cil," within Eule 44, refers to that place which he 
 first departed from, and does not include places where 
 he may have afterward resided or visited .... 222 
 
 Eule 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.: SeeEules 49, 50, 51, 52 . . • .... 222 
 
 Eule 49. — That within that time he was in a des- 
 perate state of health 222 
 
 b 
 
XV11I TABLE OF RULES. 
 
 PAGE 
 
 Eule 50. — That within 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 
 
 Kule 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 
 
 Kule 52. — That his habits, character, domestic rela- 
 tions or necessities would have made it certain 
 that if alive within that period, he would have re- 
 turned to or communicated with his residence, home 
 ordomicil 233 
 
 Eule 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. 
 
 Eule 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 RULES. XIX 
 
 PAGE 
 
 Eule 55. — But where the calamity, though common 
 to all, consists of a series of successive events, sep- 
 arated from each other in point of time and 
 character, and each likely to produce death upon 
 the several Victims, according to the degree of ex- 
 posure to it, the difference in age, sex, or health 
 may raise an inference of survivorship .... 246 
 
 Eule 56. — 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 Presumption of Identity. 
 
 Eule 57. — Identity of name raises a presumption of 
 identity of person, where there is similarity of res- 
 idence or trade or circumstances or where the name 
 is an unusual one. But aliter where the name is a 
 common one and there are several persons known of 
 the same name and of the same place 248 
 
 Eule 58. — The fact that the family name and initials 
 are the same raises no presumption that the parties 
 are the same 255 
 
 Eule- 59. — Where two persons of the same name oc- 
 cupy different positions or relations, the presumption 
 is that they are different persons 256 
 
 Eule 60. — 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 
 
 Eule 61. —Where an interest is claimed, mere identity 
 of name to the person entitled is insufficient . . 258 
 
 Eule 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 
 
 Eule 63. — And the identity of things may be presumed 
 from circumstances 261 
 
 CHAPTER XLH. 
 
 The Pbesumption of Intent. 
 
 Eule 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 
 
 Eule 65. — Where an act is criminal per se a criminal 
 intent is presumed from the commission of the act. 266 
 
 Eule 66. — 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 
 
 Eule 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 
 
 Eule 68. — A person is presumed to intend to do what 
 is within his right and power rather than what is 
 beyond them . . . . t 276 
 
TABLE OF RULES. XXI 
 
 CHAPTER XIV. 
 
 The Presumptions from the Course of Nature. 
 
 Eule 69. — The law presumes that in a particular case 
 the regular course of nature applied or was fol- 
 lowed 279 
 
 Eule 70. — A person is presumed to do what it is his 
 interest to do, and not to act against his interest. . 
 
 CHAPTER XV. 
 
 The Presumptions of Payment and the Discharge of 
 Obligations. 
 
 Eule 71. — Independently 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, judgments, the due execu- 
 tion of a trust, and the performance of a covenant . 308 
 
 Eule 72. — The presumption under Eule 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 
 
 Eule 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 
 
XXU TABLE OF RULES. 
 
 PAGE 
 
 Rule 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 explanatory 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 Presumptions 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 353 
 
TABLE OF RULES. XX111 
 
 PAGE 
 
 Eule 79. — Acts which are criminal by the law of the 
 forum and are malum in se, will be presumed to be 
 crimes in a foreign State or country 365 
 
 Eule 80. — -The term "another State or country" 
 within Eule 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 366 
 
 Eule 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 369 
 
 Eule 82. — The term "law" within Eule 78 is re- 
 stricted to the common law of the forum, or the 
 commercial law and does not include the statute 
 law of the forum 371 
 
 Eule 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 Presumptions from the Alteration of instruments. 
 
 Eule 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 EULES. 
 
 FAGS 
 
 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 
 
 PAET IV. 
 
 THE PRESUMPTIONS IN THE LAW OF REAL PROP- 
 ERTY. 
 
 CHAPTER XVILT, 
 
 The Pkesumptions fkom Possession and Lapse op Time. 
 
 Eule 86. — Where it is shown that any person has for 
 a long period of time exercised any proprietary 
 right which might have had 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 
 
 Eule 87. — Where there exists no power to make a 
 grant, none can be presumed from long posses- 
 sion 417 
 
TABLE OF RULES. XXV 
 
 PAGE 
 
 Kule 88. — When a person is in possession of prop- 
 erty and is shown entitled to the beneficial ownership 
 thereof, the presumption is that every instrument 
 has been executed, and every thing has been done 
 to render his title legal 419 
 
 Kule 89. — And the possession of personal property 
 raises a presumption of title in, and ownership of, 
 the property by the possessor 420 
 
 PAET V. 
 
 THE PRESUMPTIONS IN CRIMINAL CASES. 
 
 CHAPTER XLX. 
 
 The Presumptions in Favor op Innocence. 
 
 Eule 90. — The law presumes the innocence of a per- 
 son charged with crime until the contrary is proved 
 beyond a reasonable doubt 432 
 
 Sub-Rule 1. — Fraud is never presumed unless such 
 circumstances are shown as will legally justify such 
 an inference 439 
 
 Sub- Rule 2. — And 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 RULES. 
 
 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 
 
 Eule 93. —The presumption of innocence may be 
 strengthened — as by the relation of the parties . 460 
 
 Eule 94. — But except for the purpose of the trial, a 
 presumption of guilt arises from the finding of an 
 indictment 460 
 
 Eule 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 he 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 
 
 Eule 96. — A person is presumed to intend the natural 
 and legal consequences of his acts 467 
 
 Eule 97. — Where an act is criminal per se a. 
 criminal intent is presumed from the commission 
 of the act 469 
 
 Sub-Eule 1. — 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 
 specific intent 472 
 
TABLE OF RULES XXVU 
 
 PAGE 
 
 Eule 98. — Possession, knowledge, or motive may 
 overthrow the presumption of innocence, and raise 
 in its place the presumption of guilt 478 
 
 Rule 99. — A person on trial for one crime can not be 
 presumed guilty because he has, at another time, 
 committed ^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 where 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 gestae . . 490 
 
 CHAPTEE XX. 
 
 The Presumptions in Disfavor op 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 may arise . . 493 
 
 Sub-Rule 1. — A motive is proved by showing the 
 desire of gain, the gratification of passion, or the 
 preservation of reputation, accomplished or attempted 
 or able to be accomplished by the perpetration of the 
 crime charged 495 
 
XXV1U TABLE OF EULES. 
 
 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 
 
 Eule 105. — Proof of a former attempt by th*e 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 
 
 Eule 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-Eule 1. — But Rule 106 does not apply where the 
 preparations may have been innocent, or for the exe- 
 cution of something different though illegal, or where 
 the crime for the execution of which the preparations 
 were made may have been subsequently frustrated or 
 voluntarily abandoned 510 
 
 Eule 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-Eule 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 
 
 Eule 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 BULES. XXIX 
 
 PAGE 
 
 Rule 109. — The possession by the accused of the 
 fruits of the crime raises a presumption of his guilt 515 
 
 Sub-Rule 1. — In prosecutions for larceny or robbery, 
 the recent possession of the stolen property raises the 
 ■presumption that the possessor is the thief . . . . 518 
 
 Sub-Rule 2. — But a 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 "recent" within 
 Sub-Rule 1 depends upon the cost, bulk, or transfer- 
 ability of the 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. — The 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 
 where the fear may be on account of another act or 
 crime . . 534 
 
XXX TABLE OF RULES. 
 
 PAGE 
 
 Kule 114. — The flight of the accused, or his attempts 
 to escape, 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 prcesumuntur contra spolia- 
 torem 539 
 
 Rule 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 
 
 PAET VI. 
 
 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 particular evi- 
 dence, unless and until the truth of such inference is 
 disproved 555 
 
TABLE OF RULES. XXXI 
 
 PAGE 
 
 Sub-Rule 1. — A presumption of law is a rule of law 
 that a particular inference shall be drawn by a court 
 or jury from a particular circumstance 555 
 
 Sub-Rule 2. — A presumption of fact is a rule of law 
 that a fact otherwise doubtful may 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 v 
 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 d. Douglas, 4 Denio, 305. p. 
 
 358. 
 Abrams v. Pomeroy, 13 111. 133. p. 
 
 89. 
 Acker v. Ledyard, 8 Barb. 514. p. 
 
 381, 
 Ackerman, Ee, 3 Eedf. 521. p. 235. 
 Adam v. Kerr, 1 B. & P. 360. p. 83. 
 Adams v. Clark, 8 Jones (L.), 56. 
 
 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, 
 
 464. p. 58. 
 Aiken v. State, 10 Tex. App. 610. p. 
 
 537. 
 Alabama, etc., Co. v. Sanford, 36 Ala. 
 
 703. p. 353. 
 Alexander k State, 56 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. Middleborougb, 10 
 
 Pick. 378. p. 350. 
 Allen v. Lyons, 2 Wash. C. C. 475. 
 
 p. 197. 
 Allen v. Public Administrator, 1 
 
 Bradf. 378. p. 179. 
 
 c 
 
 Allen v. Watson, 2 Hill (S. C), 319, 
 
 p. 370. 
 Allison v. Thomas, 44 Ga. 649. p. 58. 
 Almy v. Reed, 10 Cush. 421. p. 160. 
 Alsop v. Bontrell, Cro. Jac. 511. p. 
 
 303. 
 Alston v. Alston, 4 S. C. 116. 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 o. 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. (n. s.) 
 
 526. p. 83. 
 Androscoggin Bk. v. Kimball, 10 
 
 Cush. 374. p. 18. 
 Andrus v. Poster, 17 Vt. 556. p. 75. 
 Annesley v. Earl of Anglesea, 17 How. 
 
 St. Tr. 1430. p. 142. 
 Anonymous, 2 Hayw. (S. C.) 134. p. 
 
 200. 
 Ansley 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, 76 Mo. 315. p. 36. 
 Apthorp v. Nerth, 14 Mass. 167. p- 
 
 34. 
 Arayo v. Curreel, 1 La. 540. p. 176. 
 Archey v. Stephens, 8 Ind. 411. p. 
 
 179. 
 
 ( xxxiii ) 
 
XXXIV 
 
 TABLE OF CASES CITED. 
 
 Arden's Case, Mrs., 5 Log. Obs. 69. 
 
 p. 608. 
 Arent v. Squire, 1 Daly, 347. p. 55. 
 Armory v. Delamarie, 1 Smith L. C. 
 
 S57. pp. 135, 141, 143, 640. 
 Armstrong v. Hodges, 2 B. Mon. 70. 
 
 pp. 93, 434, 451, 587. 
 Armstrong v. Mudd, 10 B. Mon. 144 ; 
 
 50 Am. Dee. 545. p. 34. 
 Arnold v. State, 9 Tex. (App.) 436. 
 
 pp. 537, 539. 
 Arnold v. Stevens, 24 Pick. 106 ; 35 
 
 Am. Deo. 305. p. 405. 
 Ashbury v. Sanders, 8 Cal. 62. pp. 
 
 200, 231. 
 Ashe v. De Bosset, 8 Jones (L.), 240. 
 
 pp. 70, 185. 
 Ashe v. Lanham, 5 Ind. 434. p. 67. 
 Askew v. Odenheimer, 1 Bald. 390. 
 
 pp. 152, 153. 
 Astley v. Astley, 1 Hagg. Ecc. 720. 
 
 pp. 262, 467. 
 Atchison v. McCulloch, 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.-Gen. v. Dean of Windsor, 24 
 
 Beav. 679. p. 124. 
 Atty.-Gen. i>.Emeline Hosp., 17 Beav. 
 
 390. p. 417. 
 Atty.-Gen. v. Halliday, 26 U. C. Q. B. 
 
 897. p. 122. 
 Atty.-Gen. v. Le Merchant, 2 Term 
 
 Eep. 201. p. 137. 
 Atty.-Gen. v. Parnther, 3 Brown O. O. 
 
 441. p. 179. 
 Atzroth v. State, 10 Fla. 207. p. 518. 
 Aubert v. Walsh, 4 Taunt. 493. p. 
 
 304. 
 Augustine v. Doud, 1 HI. (App.) 588. 
 
 p. 35. 
 Austin v. Austin, 50 Me. 74. p. 40. 
 Austin v. Bailey, 37 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. 
 ATerett v. Thompson, 15 Ala. 678. 
 
 p. 358. 
 Ayres v. Bobins, 30 Gratt. (Va.) 105. 
 
 p. 36. . 
 
 B. 
 
 Babb v. Clemson, 10 S. & K. 424. p. 
 
 386 
 Baccigalupo's Case, 33 Gratt, 807. p. 
 
 459. 
 Bach v. Cohn, 3 La. Ann. 103. p. 
 
 636. 
 Bacon v. Mclntyre, 8 Mete. 86. p. 
 
 316. 
 Bacon v. Smith, 2 La. Ann. 441. p. 
 
 167. 
 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, 64 Ala. 551. pp. 
 
 34, 419. 
 Baker v. State, 4 Ark. 66. 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. 
 
 64. 
 Balbee ». Donaldson, 2 Grant's Cas. 
 
 460. p. 248. 
 Baldwin v. Bordheimer, 48 Cal. 433 
 
 (1874). p. 53. 
 
TABLE 037 CASES CITED. 
 
 XXXV 
 
 Ball i). Taylor, 1 C. & P. 417. p. 
 
 83. 
 Ballew v. Clark, 2 Ired. L. 24. p. 
 
 179. 
 Banbury Peerage, 1 Sim. & Stu. 157. 
 
 pp. Ill, 112, 116. 
 Bancroft v. Holton, 69 N. H. 141. p. 
 
 855. 
 Bangor v. Brunswick, 30 Me. 898. p. 
 
 86. 
 Bangor, etc., R. Co. v. Smith, 47 Me. 
 
 45. p. 61. 
 Bk. v. Dandridge, 12 Wheat. 64. p. 
 
 60. 
 Bk. of Ala. v. Livingston, 2 La. Ann. 
 
 915. p. 86. 
 Bk. of Orleans v. Barry, 1 Denio, 116. 
 
 p. 77. 
 Bk. of Washington v. 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. Lytle, 4 La. Ann. 557. pp. 
 
 190, 580. 
 Barker v. Keets, 1 Preem. 251. p. 
 
 84. 
 Barnard i>. Heydrick, 49 Barb. 62. p. 
 
 36. 
 Barned v. Barned, 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. 305. 
 Barnett v. Torrance, 26 Ala. 463. pp. 
 
 320, 421, 428, 424. 
 Barnett v. Wolf, 70 111. 76. p. 35. 
 Barney v. Seeley, 38 Wis. 881. p. 
 
 142. 
 Barns v. Hatch, 3 N. H. 804. p. 
 
 304. 
 Barnum v. Barnum, 42 Md. 253. p. 
 
 106. 
 Barony of Sale, The, 1 H. L. Cas., 
 
 607. p. 117. 
 Barton v. State, 18 Ohio, 221. p. 
 
 483. 
 
 Barrett v. Williamson, 4 McLean, 
 
 689. pp. 17, 73. 
 Barrington v. Bk. of Washington, 14 
 
 S. & R. 422. p. 380. 
 Bassett 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. 
 Battle w.Mobile, 9 Ala. 234; 44 Am. 
 
 Dec. 438. p. 68. 
 Battles v. Holley, 6 Me. 145. p. 321. 
 Banghan 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. 
 Baylifife v. Butterworth, 1 Ex. 23. 
 
 pp. 16, 75. 
 Beale v. Com., 25 Pa. St. 11. p. 37. 
 Beall „. Leverett, 32 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. 
 Beaman v. Russell, 20 Vt. 205; 49 
 
 Am. Dec. 775. pp. 382, 388, 
 Beasney, Re, L. R. 7 Eq. 498. p. 235. 
 Beatty 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. 
 Beaman v. State, 5 Blackf. 165. 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. 36. 
 Bell v. Prankis, 4 Man. & Gr. 447. 
 
 p. 134. 
 Bell v. Hagarstown Bk., 7 Gill, 227. 
 
 p. 186. 
 Bell v. Hearne, 10 La. Ann. 515. p. 
 
 124. 
 
XXXVI 
 
 TABLE OF CASES CITED. 
 
 Bell v. Kennedy, L. B. 1 Sc. App. 
 
 320. p. 173. 
 Bell 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. 
 Belto. Davis, 1 Cal. 134. p. 35. 
 'Beltzhover v. Blackstock, 3 Watts, 
 ' 26. p. 77. 
 Berais o. MeKenzie, 13 Fla. 553. p. 
 
 372. 
 Bender v. Montgomery, 8 Lea, 586. 
 
 p. 320. 
 Bendit v. Auditors Wayne Co., 20 
 
 Mich. 176. p. 49. 
 Benhams Trusts, Re, 37 L. J. (Ch.) 
 
 265. 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 u. Judkins, 13 Mete. 265. p. 
 
 90. 
 Bentley's Appeal, 99 Pa. St. 504. pp. 
 
 319, 336, 
 Bergin v. State, 33 Ohio St. 115. p. 
 
 459. 
 Berry v. Alderman, 14 C. B. 95. p. 77. 
 Berry v. t Anderson, 22 Ind. 36. p. 
 
 419. 
 Berry v. Philpot, 2 Myl. & K. 349. 
 
 p. 113. 
 Berryman v. Wise, 4 Term Rep. 366. 
 
 p. 49. 
 Berthelemy v. Johnson, 3 B. Mon. 
 
 90 ; 38 Am. Dec. 179. p. 404. 
 Betts 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.),363. p. 
 
 320. 
 Birkey v. McMakin, 64 Pa. St. 343. 
 
 p. 346. 
 
 Birmingham, Borough of, v. Ander- 
 
 son, 40 Pa. St. 507. p. 403. 
 Bishop v. Chambre, 3 C. & P. 55. ' 
 
 pp. 388, 390. 
 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 Baxt. 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. State, 52 Ala. 344. p. 39. 
 Blake v. Fash, 44 111. 304. p. 160. 
 Blake v. State, 3 Tex. App. 581. p. 
 
 537. 
 Blanchard v. Lambert, 43 Iowa, 228. 
 
 pp. 93, 435. 
 Blancbard v. Toung, 11 Cush. 341. 
 
 p. 54. 
 Blanchet v. Poster, 2 Ves. Sr. 265. 
 
 p. 145. 
 Blaney 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, 83 Wis. 402. p. 174. 
 Boehm v. Wood. p. 318. 
 Bogue v. Bigelow, 29 Vt. 179. p. 248. 
 Bolster v. Cushman, 34 Me. 428. pp. 
 
 98, 276. 
 Bond v. Searrell, 3 Burr. 1 773. p. 87. 
 Bond v. State, 23 Ohio St. 349. p. 
 
 459. 
 
TABLE OP CASES CITED. 
 
 XXXV II 
 
 Bond v. Warren, 8 Jones L. 191. p. 
 
 481. 
 Bonner v. Young, 68 Ala. 35. p. 319. 
 Bonsall v. State, 35 Ind. 460, p. 483. 
 Boon v. Pierpont, 28 N. J. (Eq..) p. 
 
 308. 
 Booth v. Booth, 7 Conn. 350 (1829). 
 
 p. 53. 
 Boothby v. Stanley, 34 Me. 515. p. 
 
 382. 
 Boswell's Case, 20 Gratt. 860. p. 
 
 459. 
 Bosworth v. Vandewalker, 53 N. T. 
 
 597 p. 28. 
 Bott v. Wood, 56 Miss. 136. pp. 134, 
 
 152, 153, 154. 
 Boulware v. Witherspoon, 7 Bich. 
 
 450 p. 55. 
 Bowden v. Evans, 2 Hayw. (S. C.) 222. 
 
 p. 200. 
 Bowden v. Henderson, 2 Sm. & G. 
 
 360. p. 237. 
 Bowenrc. Bowen,2Bradf. 336. p. 75. 
 Bowie v. Poor School Soc, 75 Va. 
 
 300. p. 344. 
 Bowles v. Bingham, 3 Munf. 589. p. 
 
 108. 
 Bowley v. Barnes, 8 Q. B. 1037. p. 
 
 50. 
 Bowman v. McElroy, 15 La. Ann. 
 
 963. p. 20. 
 Boyce®. Luke, 17 S. C. 481. p. 308. 
 Boyce v. Owens. 1 Hill, 10. p. 418. 
 Boyd «.Harris, 2 Md. Ch. 210. p. 
 
 315. 
 Boyd v. Mclver, 11 Ala. 822. pp. 77, 
 
 79. 
 Boyd v. Eeed, 6 Heisk. 631. p. 352. 
 Boyers v. Pratt, 1 Humph. 90 p. 14. 
 Boykin v. Boykin, 70 N. C. 262. p. 
 
 118. 
 Bracken v. Miller, 4 W. & S. 102. p. 
 
 347. 
 Brackenridge u. Di.wson, 7 Ind. 383. 
 
 p. 37. 
 Bradford's Case, Phill. Cas. p. 511. 
 Bradish v. Bliss, 35 Vt. 326. p. 438. 
 Bradlaugh »..DeBeu, L. B, 3 C. P., 
 283. p. 83. 
 
 Bradley v. Bradley, 4 Whart. 173. 
 
 pp. 200, 201. 
 Bradley i>. The New World, 2 Cal. 
 
 375. p. 420. 
 Bradley v. Mut. Ben. L. Ins. Co., 3 
 
 Bans. 341. p. 358. 
 Braithwaite v. Coleman, 1 Harr. & 
 
 Wall. 229. p. 133. 
 Brandon v. Snows, 2 Stew. (Ala.) 255 
 
 (1830). p. 53. 
 Brandon v. Woodthorpe, 10 Beav. 
 
 463. p. 303. 
 Breck v. Cole, 3 Sandf. 80. p. 89. 
 Breckinridge v. Walters, 4 Dana, 627. 
 
 p. 405. 
 Breed v. Mitchell, 48 Ga. 533. p. 
 
 102. 
 Breed v. Pratt, 18 Pick. 115. p. 280. 
 Breiden v. Paff, 12 S. & E. (Pa.) 430. 
 
 pp. 448, 583. 
 Brennan v. Shinkle, 89 111. 604. 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. 
 Brewer 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. 420. p. 
 
 50. 
 Brien v. Hart, 6 Humph. 131. pp. 27, 
 
 29. 
 Briggs v. Taylor, 35 Vt. 57. pp. 47, 
 
 49. 
 Brigg's Appeal, 93 Pa. St. 485. p. 
 
 322. 
 Brimhall v. Van Campen, 8 Minn. 13. 
 
 p. 370. 
 Brinyea v. State, 5 Ala. 241. p. 459. 
 Brisbane v. Daeres, 5 Taunt. 143. p. 
 
 6. 
 British, etc., Assur. Co., In re, 1 De 
 
 G. J. & S. 35. p. 82. 
 Broadwell v. Stiles, 8 N. J. (L.) 158. 
 
 p. 160. 
 
XXXV111 
 
 TABLE OF CASES CITED. 
 
 Brobst v. Brock, 10 "Wall. 519. p. 
 
 316. 
 Brock v. Savage, 31 Pa. St. 422. pp. 
 
 308, 408. 
 Brock v. State, 26 Ala. 104. p. 486. 
 Brombridge v. Osborne, 1 Stark. 374. 
 
 p. 347. 
 Brooke v. Townshend, 7 Gill, 31. p. 
 
 179. 
 Brooks ». 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. Bandal, Cro. Bliz. 503. 
 
 p. 247. 
 Brown v. Austin, 35 Barb. 341. p. 
 
 304. 
 Brown v. Beers, 6 Conn. 215. p. 5. 
 Brown v. Benight, 3 Blackf. 39; 23 
 
 Am. Dec. 372. p. 259. 
 Brown ». Burnham, 28 Me. S8. p. 
 
 173. 
 Brown v. Connelly, 21 Ark. 140. p. 
 
 34. 
 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 .*. Kentfield, 50 Cal. 129. p. 
 
 35. 
 Brown v. Kimball, 12 Vt. 617. p. 
 
 567. 
 Brown v. King, 5 Mete. 1J3. p. 163. 
 Brown v. McKinney, 9 Watts, 565; 
 
 36 Am. Dec, 139. p. 403. 
 Brown v. Metz, 33 111. 339. p. 248. 
 Brown v. Neilson, 1 Caines, 525. p. 
 
 227. 
 Brown v. Oattis, 55 Ga. 416. p. 123. 
 Brownell v. Palmer, 22 Conn. 121. p. 
 
 67. 
 Brown v. Prugle, 4 Hare, 124. p. 
 
 303. 
 Brown v. San Francisco Gas Co., 58 
 
 Cal. 426. p. 358. 
 
 Brown v. Schock, 77 Pa. St. 471. p. 
 
 121. 
 Brown v. Wood, 17 Mass. 68. p. 40. 
 Brubaker v. Taylor, 76 Pa. St. 83. p. 
 
 322. 
 Bruce 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. Still well, 24 Pa, St. pp. 314, 
 
 122, 140. 
 Bryson v. Chisholm, 56 Ga. 596. p. 35. 
 Buchannan v. Rowland, 6 N. J. L. 721. 
 
 p. 310. 
 Buck v. Buck, 6 Bcc. & Mar. 581. p. 
 
 387. 
 Buckeye, The, 7 Biss. 23. p. 102. 
 Buckingham ». Gregg, 19 Ind. 401. 
 
 p. 358.. 
 Buckmaster i>. Job, 15 HI, 829. 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. 
 Bullen v. Bunnells, 2 N. H. 255; 9 
 
 Am. Dec. 55. p. 404. 
 Bundy v. Hart, 46 Mo. 462. p. 373. 
 Bunker v. Band, 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. 
 Burnham v. Ayer, 35 N. H. 351. p. 
 
 386. 
 Burnham v. Webster, 19 Me. 232. p. 
 
 77. 
 Burr v. Sim, 4 Whart. 150'; 33 Am. 
 
 Dec. 50. pp. 202, 230. 
 B irr v. Williams, 23 Ark. 244. p. 74. 
 Burrett v. Dickson, 8 Cal. 1 13. pp. 19, 
 
 264. 
 Burton v. Blin, 23 Vt. 152. p. 23. 
 
Burton v. Mason, 26 Iowa, 392. 
 
 98. 
 Burton v. Scott, 3 Band. 389. p. 
 
 280. 
 Bury v. Philpot, 2 Myl. &K. 349. p. 
 
 112. 
 Bush v. Guion, 6 La. Ann. 797. p. 
 
 148. 
 Bush v. Harrison, 70 111. 480. p. 35. 
 Bush v. Seaton, 4 Ind. 522. p. 420. 
 Bush v. State, 52 Ala. 13. p. 39. 
 Butcher v. Bk. of Brownesville, 2 Kas. 
 
 80. p. 27. 
 Butler v. Ford, 1 Or. & M. 663. p. 47. 
 Butler v. Ins. Co., 14 Ala. 777. p- 
 
 304. 
 Butler v. Livingston, 15 Ga. 566. p* 
 
 6. 
 Butler v. Mountgarvet, 7 H. L. Cas. 
 
 647. p. 89. 
 Butler v. Winona Mill Co., 28 Minn. 
 
 205. p. 36. 
 Byrd v. Fleming, 4 Bibb, 1 45. p. 261 . 
 Byrd v. Tucker, 3 Ark. 451. p. 89. 
 
 c. 
 
 Cabot v. Given, 45 Me. 144. p. 60. 
 Cadge, Be, L. B. 1 P. & D. 643. p. 
 
 388. 
 Cahalan 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. 563. 
 Callison v. Autry, 4 Tex. 371. p. 
 
 34. 
 Camboise 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. 
 Cameron v. State, 14 Ala. 546 ; 48 Am. 
 
 Dec. 111. pp. 448, 583. 
 
 TABLE OF CASES CITED. 
 P 
 
 XXXIX 
 
 Campbell v. Hays, 1 Ind. 547. p. 
 
 353. 
 Campbell v. Miller, 3 Mart. (u. s.) 
 
 149. p. 390. 
 Campbell v. Eeed, 24 Penn. St. 498. 
 
 p. 198. 
 Campbell v. Smith, 3. Halst. (N. J.) 
 
 140 ; 14 Am. Dec. 400. p. 405. 
 Campbell v. Wallace, 46 Mich. 320. 
 
 p. 248. 
 Canal Bk. v. Templeton, 20 La. Ann. 
 
 141. p. 77. 
 Cancemi v. People, 16 N. Y. 501. .p. 
 
 443. 
 Cannon v. Mathis, 10 Heisk. 575. p. 
 
 342. 
 Canonie ». Fowler, 3 Wend. 173. p. 
 
 370. 
 Caress o. Tattersall, 2 Man. & Gr. 
 
 891. p. 388. 
 Cargile v. Wood, 63 Mo. 56. pp. 104, 
 
 176. 
 Carneal'B. Day, Litt. Sel. Cas. 492- 
 
 p. 142. 
 Carotti v. State, 42 Miss. 334. p. 
 
 450, 686. 
 Carr t>. Miner, 92 111, 604. p. 35. 
 Carroll v. Bowie, 2 H. & McH. 457. 
 
 p. 347. 
 Carroll v. Carroll, 20 Tex. 731. p. 
 
 93, 435. 
 Carroll v. Com., 84 Pa. St. 107. p. 
 
 488. 
 Carroll v. Peake, 1 Pet. 18. p. 41. 
 Carroll v. Quynn, 13 Md. 379. pp. 99, 
 
 440. 
 Carroll v. State, 23 Ala. 28. pp. 266, 
 
 469, 473. 
 Carson v. Cent. B, Co., 35 Cal. 325. 
 
 pp. 94, 277, 436. 
 Carson v. Lineberger, 70 N. C. 173. 
 
 p. 344. 
 Carter o. Beals, 44 N. H. 408. p. 120. 
 Carter v. Blanton, 33 Miss. 291. p. 
 
 36. 
 Carter v. Jones, 5 Ired. (Eq.) 196 ; 49 
 
 Am. Dec. 424. p. 34. 
 Carter v. State, 12 Tex. App. 500. p. 
 
 459. 
 
xl 
 
 TABLE OF CASES CITED. 
 
 Carters. Tin i cum Fishing Co., 77 Pa. 
 
 St. 310. 404. 
 Cartwrigh't v. Cartwright, 1 Phill. 
 
 190. p. 179. 
 Cary v. Gerrisb, 4 Esp. 9. p. 304. 
 Case v. Case, 17 Cal. 698. p. 451, 
 
 687. 
 Case v. Colston, 1 Mete. (Ky.) 145. 
 
 p. 54. 
 Casey v. State, 6 Mo. 646. p. 480. 
 Casey v. Inloes, 1 Gill, 430; 39 Am. 
 
 Dee. 658. p. 404. 
 Castanedo v. State, 7 Tex. (App.) 584. 
 
 p. 36. 
 Casteel v. Casteel, 38 Ark. 477. p. 
 
 34. 
 Castleberry v. Pearee, 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. Eyan, 26 Ind. 207. • p. 75. 
 Candillo. Tharp, 1 Q. Greene, 94. p. 
 
 36. 
 Caujolle v. Ferris, 23 N. T. 90. p. 
 
 108. 
 Caunce v. Bigbey, 3 M. & W. 68. p. 
 
 34. 
 Centre Bank v. Heydorn, 48 N. T, 
 
 260. p. 308. 
 Cesure v. State, 1 Tex. App. 19. p. 
 
 486. 
 Chaffee v. U. S. 18 "Wall. 516. p. 
 
 138. 
 Chamberlain v. Darrington, 4 Port. 
 
 615. p. 34. 
 Champion a. Sessions, 2 Nev. 271. 
 
 p. 36. 
 Chaplin v. Layton, 18 Wend. 407; 31 
 
 Am. Dec. 382. p. 6. 
 Chandler v. Barrett, 21 La, Ann. 68. 
 
 p. 179. 
 Chapin v. Dobson, 78 N. T. 74. p. 
 
 870. 
 Chapman v. Cooper, 5 Eich. (L.) 452. 
 
 pp. 201, 448, 449, 583, 584. 
 Chapman v. Howard, 3 Lea, 363. p. 
 
 65. 
 
 Chapman v. Loomis, 36 Conn. 459, 
 
 p. 320. 
 Chapman v. Mayor of Macon, 55 Ga. 
 
 666. p. 72. 
 Chapman v. Mcllwrath, 71 Mo. 44. 
 
 p. 93. 
 Chase v. Alliance Ins. Co., 9 AlleD, 
 
 811. p. 370. 
 Chase v. Chase, 6 Gray, 157. p. 263. 
 Chase v. Heaney, 70 111. 268. p. 58. 
 Chase v. People, 40 HI. 867. 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. 
 
 145. 
 Childs v. Dolan, 5 Allen, 319. p. 564. 
 Chiles v. Conley, 2 Dana, 21. p. 403. 
 Chislie's Case, 9 Lg. Obs. 186. p. 499. 
 Choate v. Hathaway, 73 111. 519. p. 
 
 35. 
 Chrisman v. Gregory, 4 B. Mon. 
 
 474. p. 36. 
 Christ v. 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. Eowell, 49 Me. 367. p. 
 
 173. 
 Churchward v. Coleman, L. E. 1 Q. B. 
 
 173. p. 538. 
 Cicely v. State, 13 S. & 51. 220. p. 
 
 516. 
 Citizens Mut. Ins. Co. v. Sortiveet, 8 
 
 Allen, 217. p. 61. 
 City of Alleghany v. Nelson, 25 Pa. 
 
 St. 332. p. 55. 
 City of Logansport v. "Wright, 25 Ind. 
 
 612. p. 54. 
 City of Louisville v. Hyatt, 2 B. Mon. 
 
 180. p. 55. 
 City of New Orleans v. Gottschalk, 
 
 11 La. Ann. 6. p. 54. 
 City of New Orleans o. Halpin, 17 
 
 La. Ann. 185. p. 54. 
 
TABLE OF CASES CITED. 
 
 Xli 
 
 City Sav. Bk. v. Bidwell, 29 Barb. 
 
 825, p. 372. 
 Claflin v. Malone, 9 B. Mon. 486 ; 60 
 
 Am. Doc. 525. p. 404. , 
 Clapp v. Thomas, 5 Allen, 158. p. 54. 
 Claridge v. Kleet, 15 Pa. St. 265. p. 
 
 89. 
 Clark v. Alexander, 8 Scott N. B. 161. 
 
 p. 175. 
 Clark v, Dutcher, 9 Cow. 674. p. 657. 
 Clark v. Eckstein, 22 Pa. St. 507. p. 
 
 390. 
 Clark v. Hopkins, 7 Johns. 556. p. 
 
 822. 
 Clark v. Miller, 9 Wend. 628. p. 123. 
 Clark v. Pease, 41 N. H. 414. p. 77. 
 Clark v. Perriam, 3 P. Wms. 834. 
 
 pp. 102, 276. 
 Clark v. Kogers, 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 d. Wardwell, 55 Me. 61. p. 55. 
 Clarke v. Canfleld, 15 N. J. (Eq.) 119. 
 
 p. 202. 
 Clarke v. Cummings, 5 Barb. 856. 
 
 pp. 200, 215. 
 Clarke v. Duteher, 9 Cow. 674. p. 6. 
 Clarke v. Magruder, 2 H. & J. 77. p. 
 
 68. 
 Clarke v. Maynard, 1 Madd. & Geld. 
 
 364. p. 115. 
 Clarkson v. Eichbaum, 2 Grant's Cas. 
 
 130. p. 303. 
 Clayton v. Wardell, 4 N. Y. 230. pp. 
 
 451, 587. 
 Clem v. K. Co., 9 Ind. 489. p. 18. 
 Clements v. Hood, 57 Ala. 462. p. 
 
 804. 
 Clements v. Larndman, 26 Ga. 401. 
 
 p. 84. 
 Clifford v. Parker, 2 Man. & Gr. 910. 
 
 p. 388. 
 Clifton v. U. S., 4 How. 246. pp. 122, 
 
 130, 132. 
 Clinton v. Kidwell, 82 111. 427. p. 
 
 279. 
 
 Clasmadeuc v. Carroll, 18 C. B. 36. 
 
 p. 82. 
 Cloud v. Clinkenbard, 8 B. Mon. 397 ; 
 
 48 Am. Dec. 397. p. 304. 
 Cluff v. Mut. Ben. L. Ins. Co., 13 
 
 Allen, 308. pp. 5, 365. 
 Clunnes v. Pezzey, 1 Camp. 8. p. 
 
 122. 
 Cobb v. Neweomb, 7 Iowa, 43. p. 54, 
 Cobleigh «. Young, 15 N. H. 493. p, 
 
 55. 
 Coble v. State, 31 Ohio St. 100. p, 
 
 486. 
 Cochran v. Arnold, 68 Pa. St. 599. 
 
 p. 36. 
 Cockayne v. Sumner, 23 Pick. 117, 
 
 p. 5. 
 
 Cockins' Case, 2 Lewin, 235. p. 525, 
 Cofleid v. McClelland, 18 Wall. 331 
 
 pp. 33, 34. 
 Coil v. Willis, 18 Ohio, 28. p. 29. 
 Coit v. Starkweather, 8 Conn. 203. 
 
 p. 200. 
 Colburn o. Averill, 80 Me. 810; 50 
 
 Am. Dec. 630. p. 70. 
 Coles v. Bowne, 10 Paige, 526. p. 84. 
 Coles v. Kelsey, 2 Tex. 541 ; 47 Am. 
 
 Dec. 661. p. 261. 
 Coleman v. Lane, 26 Ga. 615. p. 
 
 321. 
 Coleman v. People, 55 N. Y. 81. p. 
 
 488. 
 Collins v. Loyal, 56 Ala. 403. p. 39. 
 Collins v. Tenney, 7 Johns. 279. pp. 
 
 316, 318. 
 Colsell v. Budd, 1 Camp. 27. pp. 166, 
 
 323. 
 Colvin v. Worford, 20 Md. 358. p, 
 
 404. 
 Colwell v. Prindle, 11 W. Va. 307 
 
 pp. 322, 323. 
 Comfort v. People, 64 111. 404, p, 
 
 518. 
 Commercial Bk. v. Lum, 7 How, 
 
 (Miss.) 411. pp. 381, 390. 
 Comm'rs n. Hanion, 1 N. & McC. 
 
 554. p. 381. 
 Comm'rs of Brown Co. v. 'Koberts. 22 
 
 Kas.762. p. 38. 
 
xlii 
 
 TABLE OF CASES CITED. 
 
 Comm'rs of Saline Co. v. Anderson, 
 
 20 Kas. 298 ; 27 Am. Kep. 171. p. 
 
 48. 
 Commonwealth v. Bagley, 7 Pick. 
 
 279. pp. 7, 453. 
 Com. v. Balkom, 3 Pick. 281. p. 34. 
 Corn. v. Blood, 97 Mass. 538. p. 33. 
 Com. v. Brown, 123 Mass. 410. p. 44. 
 Com. „. Burk, 11 Gray, 437. pp. 291, 
 
 296. 
 Com. v. Butler, 1 Allen (Mass.), 4. 
 
 p. 438. 
 Com. v. Carpenter, 100 Mass. 204. 
 
 p. 564. 
 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. u. Eagan, 103 Mass, 71. p. 295. 
 Com. v. Eddy, 7 Gray (Mass.) 583. 
 
 p. 459. 
 Com. v. Eowler, 10 Mass. 290. p. 47. 
 Com. b. Puller, 2 Wheel. Cr. Oas. 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. 69. p. 564. 
 Com. v. Kimball, 7 Mete. 804. p. 
 
 463. 
 Com. v. Kimball, 24 Pick. (Mass.) 
 
 373. p. 445. 
 Com. v. Kinney, 120 Mass. 387. pp. 
 
 300, 549. 
 Com. v. Lahey, 14 Gray, 91. pp. 
 
 492, 5C4. 
 Com. v. Lewis, 1 Mete. 153. pp. 292, 
 
 293, 300. 
 Com. v. Low, 13 Pick. 409. p. 405. 
 
 Com. v. Mead, 10 Allen, 398. pp. 
 
 279, 282. 
 Com. v. Merriam, 14 Pick. 518. p. 
 
 492. 
 Com. v. Millard, 1 Mass. 6. p. 518. 
 Com. v. Montgomery, 11 Mete. 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. Rogers, 7 Mete. 500. p. 459. 
 Com. v. Kowe, 14 Gray, 47. p, 664. 
 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. s. Thurlow, 24 Pick. 874. pp, 
 
 463, 564. 
 Com. v. Walker, 13 Allen, 570. p, 
 
 549. 
 Com. v. Webster, 5 Cush. 316. pp t 
 
 120, 267, 442, 469, 496, 544. 
 Com. v. Welch, 97 Mass. 594. p. 291, 
 Com. v. Wentz, 11 Ashm. 269. pp, 
 
 116, 118. 
 Com. v. Williams, 2 Cush. 582. p. 
 
 513. 
 
 Com. v. Williams, 6 Gray, 1. p. 564. 
 Com. v. Wilson, 2 Cush. 690. p. 486, 
 Com. v. York, 9 Mete. 93. pp. 266, 
 
 469. 
 Comstock v. State, 14 Neb. 205. p, 
 
 552. 
 Conduit v. Soane, 24 L. T. (n. b.) 656, 
 
 p. 303. 
 Cone o. City of Hartford, 28 Conn, 
 
 363 (1869). p. 53. 
 Conkwright v. People, 35 111. 204, 
 
 pp, 479, 518. 
 Connecticut Trust Co. v. Melandy, 
 
 119 Mass. 450. p. 353. 
 
TABLE Or CASES CITED. 
 
 xliii 
 
 Connelly v. McLean, 64 Pa. St. 118. 
 
 p. 348. 
 Connor v. State, 4 Yerg. 137. pp. 
 
 206, 469. 
 Conner v. Trawick, 87 Ala. 289. p. 
 
 358. 
 Connelly v. McKean, 64 Pa. St. 113. 
 
 p. 846. 
 Connelly's Case, 1 Lewin C. C. 227. 
 
 p. 294. 
 Conolly v. Eiley, 25 Md. 402. pp. 50. 
 
 370. 
 Continental Ins. Co. v. Delpeuch, 82 
 
 Penn. St. 235. p'. 192. 
 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, Ee, Ir. Eep. 5 Eq. 240. p. 224. 
 Cookes v. Hellier, 1 Ves. sr. 235. p. 
 
 144. 
 Cookendorfer v. Preston, 4 How. 317. 
 
 p. 186. 
 Cooper v. Brookett, 4 Moore P. C. 
 
 414. p. 387. 
 Cooper v. Dedrick, 22 Barb. 516. p. 
 
 175. 
 Cooper v. Galbraith, 3 Wash. C. C. 
 
 546. p. 93. 
 Cooper v. Gibbons, 3 Camp. 363. pp. 
 
 130, 137. 
 Cooper v. Granberry, 33 Mich. 117. 
 
 p. 54. 
 Cooper v. Moore, 44 Miss. 386. p. 47. 
 Cooper v. Poston, 1 Duv. 92. p. 256. 
 Cooper v. Eeaney, 4 Minn. 528. p. 
 
 870. 
 Cope v. Cope, 1 M. & Eob. 275. pp. 
 
 112, 113, 115, 116, 117, 118. 
 Cope v. Humphreys, 14 S. & E. 21. 
 
 p. 327. 
 Cope v. Pearce, 7 Gill, 263. pp. 93, 
 
 433. 
 Copeland v. Clark, 2 Ala. 388. p. 
 
 853. 
 Copp v. Hanniker, 55 N. H. 179. p. 
 
 567. 
 Copp v. Lamb, 12 Me. 312. p. 55. 
 Corbus v. Tweed, 69 111. 205. p. 35. 
 
 Corbishley's Trusts, 14 Ch. Div. 846. 
 
 p. 201. 
 Cordrey v. Cordrey, 1 Houst. (Del.) 
 
 269. p. 280. 
 Corning v. Gd. Eapids, 46 Mich. 150. 
 
 p. 86. 
 Corwin v. Shoup, 76 111. 246. p. 20. 
 Cory v. Silcox, 6 Ind. 39. p. 35. 
 Costigan v. Gould, 5 Denio, 290. p. 
 
 89. 
 Costigan v. Mohawk, etc., E. Co., 43 
 
 Am. Dec. 758; 2 Denio, 00. p. 
 
 140. 
 Coulson v. "Watson, 9 Pet. 98. p. 394. 
 County of Hancock v. Eastern Eiver 
 
 Co., 20 Me. 72. p. 54. 
 County of Mills v. Hamaker, 1 1 Iowa, 
 
 206. pp. 29, 36. 
 Covert v. Gray, 84 How. Pr. 450. pp. 
 
 176, 188, 579. 
 Cowie v. Fisher, 45 Mich. 629. p. 
 
 308. 
 Cowperc. Cowper, 2 P. Wms.749. pp. 
 
 146, 152. 
 Cox v. Morrow, 14 Ark. 603. p. 358. 
 Cbx v. Palmer, 1 McCrary, 331. p. 
 
 390. 
 Coxe v. Deringer, 78 Pa. St. 271. p. 
 
 419. 
 Coxe v. Deringer, 82 Penn. St. 258. 
 
 186. 
 Coxe v. Field, 13 N. J. (L.) 215. p. 
 
 36. 
 Coye v. Leach, 8 Mete. 371. pp. 241, 
 
 246. 
 Coyle v. Gozzler, 2 Cranch. C. Ct. 
 
 625. p. 186. 
 Cozzens v. Gillispie, 4 Mo. 82. p. 
 
 256. 
 Crabtree v. Clark, 20 Me. 337. pp. 
 
 381, 393. 
 Crafts v. Clark, 38 Iowa, 237. p. 370. 
 Craig ». Adair, 22 Ga. 373. p. 54. 
 Craig v. Craig, 1 Bailey (Eq.) (S. C), 
 
 102. p. 200. 
 Crake v. Crake, 18 Ind. 156. p. 358. 
 Crane ». Hardy, 1 Mich. 56. p. 370. 
 Crawford v. Elliott, 1 Houst. (Del.) 
 
 465. p. 200. 
 
xliv 
 
 TABLE OF CASES CITED. 
 
 Creed, Re, 1 Drevvry, 235. p. 215. 
 Cress v. Baird, 3 Ohio St. 277. p. 
 
 303. 
 Cressy v, Tatom, 9 Oreg. 541. p. 358. 
 Cribbs v. Adams, 13 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 i>. Brown, 41 N. H. 289. p. 93. 
 Cross v. Cross, 3 Paige Ch. 139 ; 23 
 
 Am. Dec. 778. pp. 113, 110. 
 Crouch v. Eveleth, 15 Mass. 305. p. 
 
 197. 
 Crouch v. Hall, 15 HI. 268. p. 359. 
 Crouse v. Holman, 19 Ind. 30. p. 
 
 179. 
 Crow v. Marshall, 15 Mo. 499. p. 
 
 404. 
 Crowninshield „. Crowninshield, 2 
 
 Gray, 524. p. 280. 
 Croxton v. May, L. B. 9 Ch. Div. 388. 
 
 p. 303. 
 Crozier «. Hodge, 3 La. 358. p. 370. 
 Culbertson v. Milhollin, 22 Ind. 362. 
 
 p. 54. 
 Cumberland Bk. v. Hall, 6 N. J. L. 
 
 215. p. 381. 
 Cumberledge v. Cole, 44 Iowa, 181. 
 
 p. 420. 
 Cummings v. Stone, 13 Mich. 70. p. 
 
 93. 
 Cunningham «. State, 56 Miss. 269. 
 
 pp. 457, 459, 589. 
 Curlewia 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, 36 N. J. (L.) 125. pp. 
 
 7, 453. 
 Cutler v. Wright, 22 N. Y. 472. p. 
 
 373. 
 Cuttle v. Brockway, 24 Pa. St. 145. 
 
 p. 55. 
 
 D. 
 
 D. T. v. D. L. R., 1 P. & D., 127, 
 
 p. 72. 
 Daby v. Erickson, 45 N. Y. 786. pp. 
 
 320, 322. 
 Dalton 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 o. Kemble, 19 Pick. 112. p, 
 
 67. 
 Danby v. Danby, 5 Jur. (N. s.) 54. p, 
 
 223. 
 Daniels v. Barney, 22 Ind. 207. 
 
 7. 
 Daniels v. Hamilton, 52 Ala. 105, 
 
 pp. 172, 173. 
 Danley v. Bector, 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. B. 18 Ch. 
 
 Div. 213. p. 303. 
 Davies v. Davies, 9 C. & P. 37. p. 
 
 75. 
 Davis v. Black, 1 Q. B 911. p. 36. 
 Davis Bowling, 19 Mo. 651. p. 358. 
 Davis v. Briggs, 7 Otto, 628. p. 200. 
 Davis u. Bush, 8 Jur. 1114. p. 303. 
 Davis v. Carlisle, 6 Ala. 707. p. 390. 
 Davis v. Dodd, 4 Taunt. 602. p. 354. 
 Davis v. Pish, 1 G. Greene (Iowa), 
 
 40S ; 48 Am. Dec. 387. p. G8. 
 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. 381. 
 
TABLE OF CASES CITED. 
 
 xlv 
 
 Davis v. People, 1 Park. C. C. 447. 
 
 p. 616. 
 Davis v. Rogers, 14 Ind. 424. p. 370. 
 Davis v. State, 17 Ala. 354. p. 34. 
 Davis v. State, 6 Tex. (App.) 197. 
 
 p. 36. 
 Davis v. State, 6 Baxt. 429. p. 65. 
 Day v. Lamb, 7 Vt. 426. p. 90. 
 Dean v. Bittner, 77 Mo. 101. p. 202. 
 Dean v. Com., 4 Gratt. 641. p. 538. 
 Dean v. State, 37 Ark. 59. p. 34. 
 De Bardelabau v. State, 50 Ala. 180. 
 
 p. 39. 
 Decker v. Livingston, 15 Johns. 479. 
 
 p. 351. 
 Decker v. Matthews, 12 N. J. 313. 
 
 p. 146. 
 De Freest v. Bloomingdale, 5 Denio 
 
 304. p. 353. 
 Deininger v. McConnell, 41 HI. 227. 
 
 p. 84. 
 Dejarnette v. Coin., 75 Va. 867. p. 
 
 459. 
 Delabigarre v. Second Municipality, 
 
 3 La. Ann. 230. p. 419. 
 Delaney v. Eobinson, 2 Whart. 503. 
 
 p. 315. 
 Delphi School Dist. v. Murray, 63, 
 
 Cal. 29. p. 47. 
 Delamere v. Queen, L. E. 2 H. L. 
 
 419. p. 35. 
 Delano v. Goodwin, 41 N. H. 205. 
 
 p. 1S2. 
 Delassus «. U. S., 9 Pet. 118. p. 55. 
 Dempster v. Parnell, 4 Scott N. K. 
 
 30. p. 28. 
 Den v. Den, 6 Cal. 81 (1856). p. 53. 
 Den v. Gaston, 25 H". J. (L.) 615. p. 
 
 419. 
 Den v. Hill, McAll. 480. p. 65. 
 Dennison v. Page, 29 Pa. St. 420. pp. 
 
 108, 118. 
 Dennison v. Story, 1 Oregon, 272. p. 
 
 55. 
 Denniston v. McKeen, 2 McLean, 
 
 252. p. 315. 
 Denny v. Dana, 2 Cush. 160. p. 
 
 263. 
 Desha v. Smith, 20 Ala. 747. p. 68. 
 
 Desnoyer v. McDonald, 4 Minn. 515. 
 
 p. 870. 
 Desverges v. Desverges, 31 Ga. 753 
 
 p. 419. 
 Deupree v. Deupree, 45 Ga. 414. p. 
 
 35. 
 Devine v. Wilson, 10 Moore, P. C. 
 
 502. p. 404. 
 Dexter v. Arnold, 3 Sumn. 152. p. 
 
 316. 
 Diamond v. Tobias, 12 Pa. St. 312. 
 
 p. 324. 
 Dickerson -a. Burke, 25 Ga. 225. p. 
 
 77. 
 Didlake v. Eobb, 1 Woods, 682. p. 
 
 322. 
 Diehl v. Emig, 65 Penn. St. 327. pp. 
 
 82, 140. 
 Dillman v. Cox, 23 Ind. 440. p. 304. 
 Dinkins v. Samuels, 10 Eich. (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, 16 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. 538. p. 200. 
 Doe v. Ireland, 11 East, 280. p. 427. 
 Doe v. Jesson, 6 East, 80. p. 201. 
 Doe v. Nepean, 5 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. 64. 
 Dollfus v. Frosch, 1 Denio, 367. p. 
 
 372. 
 Dolph v. Barney, 5 Oregon, 591. p. 
 
 55. 
 Donahue v. Coleman, 49 Conn. 464. 
 
 p. 174. 
 
xlvi 
 
 TABLE OTT CASES CITED. 
 
 Donegan v. "Wood, 4.9 Ala. 242. p. 
 
 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 ■«. Mullen, 78 111. 342. 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. 569, 572, 574. 
 Douglass v. Ovens, 5 Rich. (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 HI. 268. p. 142. 
 Downs v. Sooy, 28 N. J. (Eq.) 55. p. 
 
 308. 
 Doyle v. Doyle, 56 N. H. 567. 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, 616, 629. 
 Drennan v. Douglass, 102 111. 345. p. 
 
 108. 
 Druse v. Wheeler, 22 Mich. 439. pp. 
 
 47, 49, 
 Drysdsile's Appeal, 14 Pa. St. 531. 
 
 p. 320. 
 Dubois u. 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, Be, Ir. Eep. 5 Eq. 506. p. 
 
 387. 
 Duke v. Thompson, 16 Ohio, 35. p. 
 
 403. 
 Duke of Cumberland v. Graves, 197. 
 Dukes v. Bowley, 24 111. 210. p. 35. 
 Duncan ■■». Drury, 9 Pa St. 332 ; 49 
 
 Am. Dec. 565. p. 304. 
 Dunham v. Minard, Page, 443. 816. 
 Dunlap v. Sims, 2 La. Ann. 630. p. 
 
 54. 
 Dunlap v. Ball, 2 Cranch, 184. p. 
 
 342. 
 Dunlap v. Dougherty, 20 HI. 397. p. 
 
 54. 
 Dunlap v. Munroe, 1 Cranch C. C. 
 
 637. p. 65. 
 Dunn v. Adams, 1 Ala. 527; 35 Am. 
 
 Dec. 42. p. 359. 
 Dunn v. Snowden, 32 L. J. (Ch.) 104. 
 
 p. 197. 
 Dunn v. State, 2 Ark. 227. pp. 488, 
 
 605. 
 Dunn's Case, 1 Moody, 146. p. 487. 
 Dupeyre v. Western Ins. Co., 2 Bob. 
 
 (La.) 457 ; 38 Am. Dec. 465. p. 
 
 102. 
 Dupuis v. Thompson, 16 Fla. 70. p. 
 
 54. 
 Durgin v. Danville, 47 Vt. 92. p. 
 
 124. 
 Durkins v. Morse, 17 G-a. 62. p. 57. 
 Du Val v. Marshall, 30 Ark. 230. p. 
 
 369. 
 Dyer v. Flint, 21 111. 80. p. 54. 
 Dyerle v. Stair, 28 Gratt. 800, p. 70. 
 Dyson v. State, 26 Miss. 362. pp. 
 
 86, 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. 
 
TABLE OF CASES CITED. 
 
 xlvii 
 
 Bast India Co. v. Tritton, 8 B. & C. 
 
 280. p. 6. 
 Eastman v. People, 93 111. 112. p. 35. 
 Eaton v. White, 18 Wis. 618. p. 47. 
 Eaton v. Woydt, 26 Wis. 333. p. 172. 
 Eby v. Eby, 5 Pa. St. 435. p. 333. 
 Ecker v. McAllister, 45 Md. 290. pp. 
 
 262, 467. 
 Edson v. Hayden, 18 Wis. 627. p. 55. 
 Edwards, In re, 68 Iowa, 431. p. 95. 
 Edwards v. Campbell, 23 Barb. 423. 
 
 p. 347. 
 Edwards v. James, 7 Tex. (App.) 372. 
 
 p. 65. 
 . Edwards v. State, 49 Ala. 834. p. 89. 
 Edwards v. Tuck, 23 Beav. 271. p. 
 
 303. 
 Egery v. Buchanan, 5 Cal. 53 (1855). 
 
 p. 53. 
 Egg v. Barnett, 3 Esp. Cas. 196. p. 
 
 345. 
 Ellicott v. Martin, 6 Md. 509. p. 77. 
 Ellis v. Carr, 1 Bush, 527. p. 54. 
 Ellis v. Day, 4 Conn. 95. p. 481. 
 Ellis v. Drake, 8 Allen, 161. p. 564. 
 Ellis v. Ellis, 68 Iowa, 720. p. 569. 
 Ellis v. Maxon, 19 Mich. 186. p. 373. 
 Ellsworth v. Moore, 5 Iowa, 486. p. 
 
 256. 
 Eloi v. Mader, 1 Bob. 531 ; 38 Am. 
 
 Dec. 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 v. Lloyd, 56 Ga. 547. p. 35. 
 Entriken v. Brown, 30 Pa. St. 364. p. 
 
 420. 
 Eppingw. Tunstall, 57 Ga. 267. p. 35. 
 Erskine v. Davis, 25 111. 251. pp. 
 
 190, 580. 
 Erwin v. Lowry, 7 How. 181. p. 54. 
 Ettinger v. Com., 98 Pa. St. 345. p. 
 
 545. 
 Eureka Case, The, 4 Sawy. 302. p. 
 
 65. 
 Eureka Ins. Co. v. Robinson, 56 Pa. 
 
 St. 256. pp. 184, 185. 
 
 Eustice v. Gaskins, 1 Wash. (Va.) 188. 
 
 p. 841. 
 Evans v. Ashby, 22 Ind. 15. p. 58. 
 Evans v. Bd. of Trustees, 15 Ind. 319. 
 
 p. 420. 
 Evans u. Covington, 70 Ala. 440. p. 
 
 858. 
 Evans v. Evans, 41 Cal. 103. pp. 
 
 262, 467. 
 Evans v. Huff, 5 N. J. (Eq.) 360. p. 
 
 316. 
 Ewart, Re, 1 Sw. & Tr. 258. p. 242. 
 Ewing v. Savery, 8 Bibb, 235. p. 200. 
 
 F. 
 
 Facey v. Fuller, 13 Mich. 627. p. 
 
 36. 
 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. 
 
 564. 
 Falkner -a. Christian, 51 Ala. 495. 
 
 p. 34. 
 Farlee v. Farlee, 21 N. 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. 872. p. 93. 
 Farmer's, etc., Bk. v. Noxon, 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. Mon. 
 
 665; 41 Am. Dec. 250. p. 404. 
 Fanning v. State, 14 Mo. 386. p. 
 
 638. 
 
xlviii 
 
 TABLE OF CASES CITED. 
 
 Faulkner v. Johnson, 11 M. & W. 
 
 681. p. 59. 
 Fay v. Richmond, 43 Vt. 25. p. 47. 
 Feaster v. Woodfill, 23 Ind. 493. p. 
 
 54. 
 Federhen v. Smith, 3 Allen, 119. p. 
 
 90. 
 Felker „. Emerson, 16 Vt. 653. p. 
 
 280. 
 Fenton v. Eeed, 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. 36. 
 Field*. Brown, 24 Gratt. 74. p. 403. 
 Field v. Gooding, 106 Mass. 310. p. 
 
 664. 
 Field v. Proprietors, 1 Cush. 11. p. 
 
 50. 
 Field v. "Walker, 17 Ala. 80. p. 303. 
 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. T. 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. 333. p. 420. 
 Fisher v. Chicago, etc., E. Co., 104 
 
 111. 323. p. 35. 
 Fisher v. Mayor of New York, 6 Hun, 
 
 64. p. 320. 
 Fisher v. Phillips, 4 Baxt. 243. p. 
 
 343. 
 Fisher's Case, 23 111. 293. p. 459. 
 Fitch v. Jones, 6 El. & B. 288. p. 
 
 77. 
 Fitch v. Peckham, 16 Vt. 150. p. 
 
 75. 
 Fitzgerald v. Drissler, 7 C. B. (n. s.) 
 
 375. p. 82. 
 
 Fitzhugh v. Croghan, 2 J'. J. Marsh. 
 
 429; 19 Am. Dec. 139. p. 403. 
 Fitzwilliam v. Troy, 6 N. H. 166. p. 
 
 302. 
 Fladong v. Winter, 19 Ves. 197. p. 
 
 336. 
 Flanagan v. State, 46 Ala, 703. p. 
 
 493. 
 Flanagan v. State, 25 Ark. 92. p. 
 
 642. 
 Flanders u. Davis, 19 N. H. 139. p. 
 
 280. 
 Flannery v. Anderson, 4 Nev. 438. p. 
 
 36. 
 Fleming v. Fleming, 4 Bing. 266. p. 
 
 106. 
 Fleming v. People, 27 N. T. 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 •, Calvert, 53 Miss. 46. pp. 
 
 450, 451, 586. 
 Flynn u. Coffee, 12 Allen, 133. p. 
 
 215. 
 Flynn v. Murphy, 2 E. D. Smith, 
 
 278. pp. 18, 74. 
 Folsom v. Eoot, 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 v. Crutcher, 2 A. K. Marsh. 
 
 70. p. 419. 
 Forsaith ». Clark, 21 N. H. 409. pp. 
 
 56, 200. 
 Forsyth v. Baxter, 3 HI. 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, 319,403. 
 Foulks v. Rhea, 7 Bush, 668. p. 
 
 200. 
 Fox v. Hoyt, 12 Conn. 491 ; 31 Am. 
 
 Dec. 7G3. p. 29. 
 Fox v. Thompson, 7 Casey, 174. p. 
 
 407. 
 Forcraft's Case, 1 Roll. Abr. p. 110. 
 Foxley's Case, 6 Coke, 109b; 43 
 
 Eliz. p. 537. 
 Francis v. Baker, p. 568. 
 Frantz v. Ireland, 66 Barb. 386. p. 
 
 404. 
 Fraser v. Fraser, Jac. 586. p. 303. 
 Freel v. State, 21Ark. 212. pp.279, 296. 
 Freestone v. Butcher, 9 C. & P. 617. 
 
 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, 24Pick. 13. pp. 353, 
 
 355. 
 Frick v. Barbour, 64 Pa. St. 120. p. 
 
 134. 
 Frirz 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, 
 
 656. 
 Fuhrman v. London, 13 S. & R. 386 ; 
 
 15 Am. Dec. 608. p. 819. 
 Fuller ». 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, 6 Jones Eq. 192. p. 
 
 344. 
 Fuller v. State, 48 Ala. 273. p. 
 
 618. 
 Fulweiler v. Baugher, 15 S. & E. 45. 
 
 p. 192. 
 Fyfe v. Fyfe, 106 111. .646. p. 258. 
 
 a 
 
 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. 364. pp. 28, 
 
 33, 46, 576. 
 Gantt's Admr. o, Phillips, 25 Ala. 
 
 2781. pp. 422, 424, 425. 
 Garden v. Garden, 2 Houst. (Del.) 
 
 674. p. 233. 
 Garden City Ins. Co. v. Stayart, 79 
 
 111. 259. p. 54. 
 Gardner v. Lewis, 7 Gall. 377. pp. 
 
 262, 370, 467. 
 Gardner v. 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. 198. p. 
 
 347. 
 Garner v. Green, 8 Ala. 96. p. 163. 
 Garnier v. Renner, 51 Ind. 374. p. 
 
 324. 
 Garrett v. Dilsbury R. 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. Va. 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. 6. 
 Gathings v. Williams, 1 Ired. (L.) 
 
 487 ; 44 Am. Dec. 49. p. 404. 
 Gaul v. Grout, 1 Cow. 113. p. 50. 
 Gaugwere, Re, 14 Pa. St. 417. p. 179. 
 
1 
 
 TABLE OE CASES CITED. 
 
 Gay v. Bidwell, 7 Mich. 519. p. 93. 
 Gay v. Southworth, 113 Mass. 333. 
 
 p. 54. 
 Geading v. "Walter, 29 Mo. 426. p. 
 
 304. 
 Gee v. Hicks, Eich. (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 v. Foley, 3 La. Ann. 146. p. 
 
 36. 
 Georgia E. Co. v, Monroe, 49 Ga. 373. 
 
 p. 103. 
 Georgia E. Co. „. 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 «,. 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. 69. p. 
 
 316. 
 Gibson v. State, 38 Miss. 313. p. 444. 
 Gilbert „. Boss, 7 M. & W. 121. p. 
 
 135. 
 Gilbraith v. Littiech, 73 HI. 209. p. 
 
 54. 
 Giles v. Barremore, 5 Johns. Ch. 645. 
 
 pp. 309, 318. 
 Gill v. Manley, 16 Ir. L. T. 57. p. 201. 
 Gilleland v. Martin, 3 McLean, 490. 
 
 p. 216. 
 Gillett v. Gillett, 9 Wis. 194. p. 55. 
 Gillett u . Sweat, 6 111. 476. p. 390. 
 Gilman v. Baton, 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. 
 
 Gladthorpe v. Hardman, 13 M. & W. 
 
 377. p. 35. 
 Glancy v. Elliott, 14 111. 456. pp. 35, 
 
 54. 
 Glass v. Gilbert, 68 Pa. St. 266. p. 
 
 403. 
 Glaze v. Blake, 56 Ala. 379. p. 120. 
 Godfroy ». Disbrow, Walk. (Mich.) 
 
 260. p. 84. 
 Godfroy v. Schmidt, 1 Cheves (S. C.) 
 
 57. p. 200. 
 Goener v. Woll, 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.) 
 
 160. p. 358. 
 Goodman v. Sayres, 2 Jac. & W. 263, 
 
 p. 6. 
 Goodman !;. Simonds, 20 How. 343, 
 
 p. 77. 
 Goodman v. Winter, 64 Ala. 410. p. 
 
 419. 
 Goodright v. Saul, 4 Term Eep. 358. 
 
 p. 110. 
 Goodtitle ■». Baldwin, 11 East, < 
 
 pp. 404, 427. 
 Goodwin v. Garr, 8 Cal. 615. p. 420, 
 Goodwyn ». Baldwin, 69 Ala. 127, 
 
 pp. 7, 308. 
 Gordon v. Norris, 29 N. H. 198. p. 55, 
 Gordon v. People, 83 N. Y. 508. p 
 
 651. 
 Gordon v. Ward, 16 Mich. 363. p. 370. 
 Gose a. State, 6 Tex. App. 121. p, 
 
 637. 
 Goshen v. Eichmond, 4 Allen, 458, 
 
 p. 564. 
 
 Gosset v. Howard, 10 Q. B. 441. p. 36, 
 Gottfried's Case. p. 499 
 
TABLE OF CASES CITED. 
 
 li 
 
 Gould v. Norfolk Lead Co., 9 Cush. 
 
 338. p. 163. 
 Goulding b. Clark, 34 N. H. 148. 
 
 pp. 27, 81. 
 Governor v. Campbell, 17 Ala. 666. 
 
 p. 304. 
 Governor b. Eidgway, 12 111. 14. p. 
 
 67. 
 Grabill b. Barr, 6 Pa. St. 441. p. 179. 
 Grafton Bank v. Doe, 19 Vt. 467. p. 
 
 330. 
 Graham v. Com., 16 B. Mon. (Ky.) 
 
 687. p. 459. 
 Graham v. O'Fallon, 4 Mo. 607. p. 
 
 381. 
 Graham b. Whitely, 26 N. J. (L.) 262. 
 
 p. 31. 
 Grant v. Burgwyn, 84 N. C. 650. p. 
 
 340. 
 Grant v. Lexington P. Ins. Co., 6 Ind. 
 
 23. pp. 17, 73. 
 Grantmake b. Sampson, 2 Atk. 154. 
 
 p. 327. 
 Graves v. Colwell, 90 111. 615. pp. 
 
 269, 576. 
 Graves v. Moore, 7 T. B. Mon. 341. 
 
 p. 345. 
 Graves v. State, 12 Wis. 593. p. 168. 
 Gray v. Cruise, 36 Ala, 659. p. 87. 
 Gray v. Luieh, 23 Conn. 613. p. 
 
 163. 
 Gray v. Pray, 2 Lans. 173. p. 349. 
 Gray b. Haig, 20 Beav. 219. p. 145. 
 Gray v. Larrimore, 4 Sawy. 638. p. 
 
 83. 
 Grayson v. Weddle, 63 Mo. 523. p. 
 
 64. 
 Great West. K. Co. v. Bacon, 30 HI. 
 
 347. p. 20. 
 Greaves v. Legg, 11 Ex. 612; 2 H. & 
 
 N. 210. pp. 17, 73 
 Green v. Brown 2 Strange, 1199. p. 
 
 228. 
 Green v. Rugley, 23 Tex. 539. p. 370. 
 Green b. Kussell, 132 Mass. 638. p. 
 
 353. 
 Green v. State, 66 Ala. 40. p. 34. 
 Greenfield v. Camden, 74 Me. 56. p. 
 172. 
 
 Greensborough v. Underhill, 12 Vt. 
 
 604. pp. 448, 583. 
 Greenshields v. Crawford, 9 M. & W. 
 
 314. p. 253. 
 Greenwado v. Greenwade, 8 Dana, 
 
 497. 360. 
 Greenwood b. Lowe, 7 La. Ann. 197. 
 
 pp. 93, 438. 
 Gregg v. Bethea, 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, 
 
 855. 
 Grey v. McDowell, 6 Bush, 482. p. 
 214. 
 Griffin v. Custer, 5 Ired. (Eq.) 413. 
 
 p. 359. 
 Griffin u. Mason, 3 Camp. 7. p. 83. 
 Grimes v. Bastrop, 26 Tex. 310. p. 
 
 403. 
 Grimes v. Fall, 15 Cal. 63. p. 41. 
 Grimes v. Kimball, 3 Allen, 518. pp. 
 
 124, 160. 
 Grinnell o. Warner, 21 Iowa, 11. 
 
 p. 353. 
 Grinstead v. Poote, 26 Miss. 476. p. 
 
 40. 
 Groves v. Groves, 12 W. B, 45. p. 
 
 303. 
 Groves v. Steel, 3 La. Ann. 280. p. 
 
 322. 
 Guard v. Bradley, 7 Ired. 600. p. 804. 
 Guardian L. Ins. Co. v. Hogan, 80 111. 
 
 85. p. 192. 
 GuetigB. State, 66 Ind. 94. p. 459. 
 Guice v. State, 60 Miss. 714. p. 36. 
 Gulick b. Loder, 13 N. J. (L.) 72. 
 
 p. 655. 
 Gurney b. Gurney, 32 L. J. (Ch.) 456. 
 
 p. 117. 
 Gutzweiler b. Lackman, 39 Mo. 91. 
 
 p. 93. 
 Guy v. Washburn, 23 Cal. Ill p. 63. 
 
Ill 
 
 TABLE OF CASES CITED. 
 
 Gwin v. Lee, 1 Md. Ch. 445. p. 77. 
 Gwyn v. Porter, 5 Heisk. 264. p. 842. 
 
 H. 
 
 Habersham a. Hopkins, 4 Strobh. (S. 
 
 C.) 239. p. 93. 
 Haden v. Ivey, 51 Ala. 381. p. 358. 
 Hadfield's Case, 29 How. St. Tr. 109. 
 
 p. 179. 
 Hagar v. Supervisors, 47 Cal. 222 
 
 (1874). p. 63. 
 Hagar v. Thomson, 1 Black. 80. p. 93. 
 Hahn v. Kelly, 34 Cal. 400. p. 27. 
 Haines v. Pearee, 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, Ee, 1 Wall. jr. 85. pp. 193, 
 
 200, 223. 
 Hall, Ee, 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. 30. 
 Hall v. Kellogg, 16 Mich. 135. pp. 
 
 59, 60. 
 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 Boot, 26. p. 303. 
 Halyburton v. Kershaw, 3 Dessau. 
 
 105. p. 144. 
 Ham v. Barret, 28 Mo. 388. p. 560. 
 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 •«. Hamlin, 3 Jones Eq. 191. 
 
 p. 336. 
 
 Hammersmith, etc., E. Co. «. Brand, 
 
 L. E. 4 H. 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., 62 Mo, 
 
 26. pp. 200, 201. 
 Hand v. Ballou, 2 Kernan, 541. p, 
 
 563. 
 Hanford v. Pitch, 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. I 
 
 p. 163. 
 Hanson v. Eustice, 2 How. 653. p, 
 
 137. 
 
 Hanson v. McCue, 42 Cal. 303. p. 405, 
 Harbaugh «. City of Monmouth, 74 
 
 HI. 367. p. 20. 
 .Hardin v. Crate, 78 111. 533. p. 81. 
 Hardin v. Hays, 9 Pa. St. 151. p, 179. 
 Hardin v. Ho-To-Po-Nubby, 27 Miss. 
 
 567. p. 53. 
 Hardy 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. 163. 
 Harrington v. Pry, 1 Ey. & M. 90. 
 
 p. 250. 
 Harrington v. State, 19 Ohio St. 264. 
 
 p. 442. 
 Harris v. Allnutt, 12 La. 465. p. 370. 
 Harris v. Goodwyn, 2 M. & Gr. 405. 
 
 p. 35. 
 Harris v. Lester, 80 111. 303. p. 35. 
 Harris v. McKissock, 84 Miss. 170. 
 
 p. 64. 
 
TABLE 07 CASES CITED. 
 
 liii 
 
 Harris v. Rosenberg, 43 Conn. 227. 
 
 pp. 140, 155. 
 Harris v. Story, 2 E. D. Smith, 363. 
 
 p. 18. 
 Harrison v. Harrison, 9 Ala. 73. p. 
 
 845. 
 Harrison v. Mayor, 4 De G. M. & G. 
 
 153. p. 107. 
 Harrison's Case, Eosooe Cr. Bv. 56. 
 
 p. 465. 
 Harrod v. Baretto, 1 Hall, 155. p. 30, 
 Harrod v. Harrod, 1K.&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. 86. 
 Hart v. Roper, 6 Ired. (Eq.) 349. p. 
 
 13. 
 Hart v. Ten Eyck, 2 Johns. Ch. 108. 
 
 p. 149. 
 Hartwell v. Boot, 19 Johns. 346 ; 10 
 
 Am. Dee. 233. p. 56. 
 Harwood v. Goodright, Cowp. 91. p. 
 
 147. 
 Harvey v. Laflin, 2 Ind. 478. p. 35. 
 Harvey v. Thornton, 14 111. 217. p. 
 
 198. 
 Harvey v. Thorpe, 28 Ala. 250. pp. 
 
 63, 423, 424, 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. Hon. 342. p. 
 
 465. 
 Hastings v. Cunningham, 35 Cal. 549. 
 
 p. 35. 
 Hastings v. Wagner, 7 W. & S. 215. 
 
 p. 408. 
 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. 
 Hayden v. Hayward, 1 Camp. 180. p. 
 
 128. 
 
 Hayes v. Bewick, 2 Mart. (La.) 131 ; 5 
 
 Am. Dec. 727. p. 212. 
 Hays v. State, 68 Ga. 47. p. 262. 
 Hayes v. Whitall, 13 N. J. Eq. 241. 
 
 p. 819. 
 Haynes v. Cowen, 15 Kas. 277, 637. 
 
 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. 
 
 346. 
 Hazen v. Henry, 6 Ark. 86. p. 98. 
 Headw. 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. 291. p. 
 
 77. 
 Heath v. "Waters, 40 Mich. 467. p. 
 
 123. 
 Hedge v. Drew, 12 Pick. T41. p. 303. 
 Hedge v. McQuaid, 11 Cush. 352. p. 
 
 160. 
 Hefflinger v. Shutz, 16 S. & K. 46. p. 
 
 886. 
 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. 
 Hemmingway v, Davis, 24 Ohio St. 
 
 150. p. 36. 
 Henderson v. Hoke, 1 Dev. & B 119. 
 
 p. 160. 
 Henderson v. Lewis, 9 S. & R. 384; 
 
 11 Am. Dec. 732. pp. 211, 322, 
 
 331. 
 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. 
 
 Henman «. Dickinson, 5 Bing. 183. 
 
 p. 388. 
 Hennell v. Lyon, 1B.& Aid. 182. p. 
 
 251. 
 Henry v. Dulle, 74 Mo. 443. p. 54. 
 Henry v. Evans, 58 la. 560. p. 36. 
 Henry v. Boot, 33 N. T. 554. p. 358. 
 Henthorn v. Dove, 1 Blackf. 157. p. 
 
 358. 
 Hentsch v. Porter, 10 Cal. 555. p. 35. 
 Hepburn v. Auld, 5 Oanch, 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. 
 Herriok v. Malin, 22 Wend. 873. p. 
 
 890. 
 Herring v. Goodson, 43 Miss. 392. p. 
 
 108. 
 Heslop v. Heslop, 82 Pa. St. 63. 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. Oh. 8. 
 
 pp. 93, 94, 436. 
 Heyer «. 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. E. 20 Eq. 139. 
 
 p. 235. 
 Hickman v. Upsall, 4 Ch. Div. 147; 
 
 2 14. 619. p. 235. 
 Hicks v. Keats, 4 B. & C. 71. p. 279. 
 Hicks v. Silliman, 93 111. 261. p. 638. 
 Higginson v. Mein, 4 Cranch, 415. p. 
 
 316. 
 High, Be, 2 Doug. (Mioh.) 515. p. 
 
 358. 
 
 Higham v. Stewart, 38 Mich. 513. p. 
 
 303. 
 Highfield v. Phelps, 60 Ga. 59. p. 57. 
 Hightower v. State, 68 Miss. 636. p, 
 
 86. 
 Hill v. Barnes, 11 N. H. 395. p. 386. 
 Hill v. Beach, 12 N. J. (Eq.) 31. p. 
 
 415. 
 Hill n. Cooley, 46 Pa. St. 259. p. 
 
 886. 
 Hill ». 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. 360. 
 Hillary v. 'Waller, 12 Ves. 267. p. 
 
 333. 
 Hillebrant i>. Burton, 17 Tex. 138. 
 
 p. 36. 
 Hilliard v. Gould, 34 N. H. 230. p.~ 
 
 60. 
 Hinckley v. Kersting, 21 HI. 247. pp 
 
 16, 72. 
 Hine v. Pomeroy, 39 Vt. 211. p. 
 
 185. 
 Hite v. Lenhert, 7 Mo. 22. p. 370. 
 Hix i). Whittemore, 4 Mete. 545. p. 
 
 179. 
 Hobbs o. Bibb, 9 Stew. (Ala.) 64. p. 
 
 404. 
 Hochreiter v. People, 2 Abb. App. 
 
 Dec. 363. p. 279. 
 Hodgdon v. Wright, 36 Me. 337. p. 
 
 351. 
 Hodgkinson v. Willis, 3 Camp. 401. 
 
 p. 250. 
 Hoey v. Firman, 1 Pa. St. 295; 44 
 
 Am. Dec. 129. p. 404. 
 Holleman ». De Wyse, 51 Ala. 95. 
 
 pp. 34, 63. 
 Hollman 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. Sj» 174. p- 
 
 820. 
 Holmo v. Karpser, 5 Binncy, 465. p- 
 
 77. 
 
TABLE OF CASES CITED. 
 
 lv 
 
 Holmea v. Broughton, 10 Wend. 78. 
 
 pp. 358, 370. 
 Holmes t». Do Camp, 1 Johns. 34. p. 
 
 364. 
 Holmes v. Holmes, etc., Man. Co., 37 
 
 Conn. 278. p. 262. 
 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. 
 Holyland, Ex parte, 11 Vesey, 10. p. 
 
 179. 
 Homer v. State Bk. p. 34. 
 Hommel v. Devinney, 39 Mich. 522. 
 
 p. 59. 
 Hopewell v. De Pinney, 2 Camp. 113. 
 
 p. 202. 
 Hopkington v. Springfield, 12 N. H. 
 
 828. p. 320. 
 Hopkins „. Kent, 17 Md. 117. p. 78. 
 Hopkirk v. Page, 2 Brock. 20. pp. 
 
 308, 336, 342. 
 Hopper v. Fisher, 2 Head, 258. p. 29- 
 Hopper v. State, 19 Ark. 743. p. 461. 
 Hopps v. People, 31 III. 385. p. 459. 
 Hood v. Hood, 2 Grant's Cas. 229. 
 
 p. 164. 
 Hood v. Pearson, 67 Ind. 368. p. 35. 
 Hooper i>. Howell, 62 Ga. 322. p.321. 
 Horan v. Weiler, 41 Penn. St. 470. 
 
 pp. 81, 276. 
 Home v. State, 1 Kan. 42. p. 438. 
 Horner v. State Bk., 1 Ind. 180; 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 Mich. 274. 
 
 p. 54. ■ 
 Houston v. Houston, 4 Ind. 139. p 
 
 35. 
 Houston v. Perry, 3 Tex. 390. p. 55, 
 
 How, Be, 1 Sw. & T. 53. p. 201. 
 Howard v. Boorman, 17 Wis. 459. p. 
 
 93. 
 Howard v. Mert, 64 fT. Y. 262. p. 
 
 666. 
 Howard v. Rockwell, 1 Doug. (Mich.) 
 
 815. p. 261. 
 Howard v. Shurtleff, 2 Mete. 26. p. 
 
 316. 
 Hoyt v. Newbold, 45 N. J. (.L) 219. 
 
 p. 200. 
 Hoyt w. Seeley, 18 Conn. 359. p. 70. 
 Huckvale, In re, L. B. 1 P. & D. 875. 
 
 p. 83. 
 Hudgins v. State, 61 Ga. 182. p. 35. 
 Hudson i>. Messick, 1 Houst. 275. p. 
 
 84. 
 Hudson v. Eeel, 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 El. 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. 130. p. 576. 
 Hunt v. Massey, 2 B. & Ad. 902. p. 
 
 89. 
 Hunt v. Matthews, 1 Vern. 408. p. 
 
 141. 
 Hunt ii. Pond, 67 Ga. 578. p. 35. 
 Hunt v. Stewart, 7 Ala. 527, p. 248. 
 
Ivi 
 
 TABLE OP CASES CITED. 
 
 Hunt v. Utter, 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, Ee, 1 Curt. 695. p. 224. 
 Huzzard v. Trego, 35 Pa. St. 9. p. 
 
 55. 
 Hydrick v. Burke, 30 Ark. 124. pp. 
 
 358, 3G0. 
 Hynes v. McDermott, 82 N. Y. 44. 
 
 p. 360. 
 
 I. 
 
 Illinois Cent. B. Co. v. Cragin, 71 111. 
 
 184. p. 192. 
 Illinois Cent. E. Co. v. Houck, 72 111. 
 
 85. 285. p. 102. 
 Illinois Cent. E. Co. v. Johnson, 40 111. 
 
 p. 38. 
 Illinois Cent. E. 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. 108, 108, 110. 
 Inches v. Leonard, 12 Mass. 379. pp. 
 
 318, 320. 
 Ingallsu. State, 48 Wis. 647. 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 Kingsfleld, 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 a. Pecot, 2 La. Ann. 387. 
 p. 176. 
 
 Jacob v. V. 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. T.) 
 
 347. p. 435. 
 Jackson v. Davis, 5 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. 
 
 165. 
 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 v. McCall, 10 Johns. 377 ; 6 
 
 Am. Dec. 343. pp. 304, 410, 427. 
 Jackson v. McVey, 18 Johns. 330. 
 
 pp.131, 142. 
 Jackson v. New Milford Bridge Co., 
 
 34 Conn. 266. p. 27. 
 Jackson v. Osborn, 2 Wend. 535; 20 
 
 Am. Dec. 649. p. 384. 
 Jackson v. Pcsked, 1 M. & S. 237. 
 
 p. 35. 
 
TABLE OF CASES CITED. 
 
 hi 
 
 Jackson v. Phipps, 12 Johns. 421. 
 
 p. 304. 
 Jackson v. Pierce, 10 Johns. 415. p. 
 
 842. 
 Jackson „. Potter, 4 Wend. 672. p. 
 
 163. 
 Jackson v. Pratt, 10 Johns. 381. p. 
 
 318. 
 Jackson v. Schoonmaker, 7 Johns. 13. 
 
 p. 404. 
 Jackson v. Schafer, 11 Johns. 317. 
 
 p. 56. 
 Jackson v. Sharp, 9 Johns. 165. pp. 
 
 404, 415. 
 Jackson v. Smith. 7 Cow. 717. p . 
 
 186. 
 Jackson v. Wood, 12 Johns. 242. 
 
 pp. 316, 318. 
 Jackson v. Woolsey, 10 Johns. 453. 
 
 p. 159. 
 Jackson v. Van Dusen, 5 Johns. 154. 
 
 p. 179. 
 Jackson School Tp. v. Hadley, 59 
 
 Ind. 534. 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 K. , etc., Co. v. Littlejohn, 18 
 
 Gratt. 53. pp. 98, 276. 
 Jarmain v. Cooper, 6 M. & W. 828. 
 
 p. 259. 
 Jarvis u. Albro, 67 Me. 310. pp. 
 
 £08, 316. 
 Jay v. Carthage, 48 Me. 853. p. 
 
 47. 
 Jay ne v. Price, 5 Taunt. 326. pp. 
 
 448, 583. 
 Jeeu. Audley, 1 Cox, 325. p. 303. 
 Jefferson v. Mayor, 7 Ga. 181. p. 
 
 54. 
 Jefferson County v. Ferguson, 13 HI. 
 
 33. p. 308. 
 JelfSM. Ballard, 1 B. & P. 468. p. 
 
 465. 
 Jenkins v. Parkhill, 25 Ind. 473. p. 
 
 54. 
 
 Jenkins v. Peckinpaugh, 40 Ind. 133 
 
 p. 239. 
 Jenne i>. Ward, 2 Stark. 327. p. 
 
 146. 
 Jim v. State, 5 Humph. 146. p. 612. 
 Joannes o. Bennett, 5 Allen, 169. p. 
 
 157. 
 Johannaj). Emelie, The, 18 Jur. 703. 
 
 p. 150. 
 John Hancock Ins. Co. v. Moore, 34 
 
 Mich. 41. p. 197. 
 Johnson v. Carpenter, 7 Minn. 176. 
 
 p. 85. 
 Johnsons. Chambers, 12 Ind. 102. p. 
 
 370. 
 Johnson v. Duke of Marlborough, 2 
 
 Stark. 313. p. 388. 
 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. State, 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. 461. p. 
 
 54. 
 Jones v. Fletcher, 41 Me. 254. p. 
 
 54. 
 Jones v. Graham, 36 Ark. 383. p. 
 
 34. 
 Jones ». Howland, 8 Mete. 306. p. 
 
 270. 
 Jones v. Jones, 9 M. & W. 75. p. 
 
 254. 
 Jones v. Knauss, 31 K J. (Eq.) 609. 
 
 p. 148. 
 Jones v. Lewis, 8 W. & S. 15. p. 
 
 561. 
 Jones a. Muisbach, 26 Tex. 235. p. 
 
 55. 
 Jones v. Murphj', 8 W. & S. 301. p. 
 
 147. 
 
lvih 
 
 TABLE OF CASES CITED. 
 
 Jones v. Neeley, 72 111. 449. p. 35. 
 Jones v. Newman, 1 W. Black. 60. 
 
 p. 258. 
 Jones v. Parker, 20 N. H. 31. p. 
 
 250. 
 Jones v. Randall, Cowp. 38. p. 5. 
 Jones v. Ricketts, 7 Md. 108. p. 264. 
 Jones v. Rives, 3 Ala. 13. p. 68. 
 Jones v. State, 49 Ind. 549. p. S18. 
 Jones v. State, 26 Miss. 247. p. 525. 
 Jones v. Vestry of Trinity Church, 19 
 
 Pod, Rep. 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. 
 
 33. 
 Jordan v. Stewart, 23 Pa. St. 246. p. 
 
 399. 
 Joudin v. Boyee, 33 Mich. 302. p. 
 
 381. 
 Justice v. Lang, 52 N. Y. 323. p. 
 
 556. 
 
 K. 
 
 Kane». Johnston, 9 Bosw. 154. p. 176. 
 Kansas Pac. R. 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. Cbristie, 47 Mich. 694. 
 
 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 Allen, 107. p. 
 
 449. 
 
 Kelly v, Volney, 5 Penn. L. J. 300. 
 
 p. 253. 
 Kelsoe v. State, 47 Ala. 673. p. 
 
 493. 
 Kempe v. Kennedy, 5 Cranch, 173. 
 
 pp. 27, 30. 
 Kendall v. Galvin, 15 Me. 131; 32 
 
 Am. Dec. 141. p. 68. 
 Kendall v. Kingston, 5 Mass. 524. p. 
 
 663. 
 Kenny v. Public Adm., 2 Bradf. 319. 
 
 p. 355. 
 Kent v. Bottoms, 3 Jones Bq. 69. 
 
 p. 142. 
 Kenton Co. Ct. v. Bank, 10 Bush, 
 
 629. 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. Norris, 18 N. R. 532. pp. 
 
 101, 276. 
 Kidder v. Stevens, 60 Cal. 415. p, 
 
 163. 
 Kidgill v. Moor. 9 C. B. 364. p. 
 Kilburn v. Bennett, 3 Mete. 199. p, 
 
 172. 
 
 Kilburn v. Ritchie, 2 Cal. 145. p. 35. 
 Kilcrease v. Blythe, 6 Humph. 379, 
 
 pp. 27, 29. 
 Kilpatrick v. Brashaer, 10 Heisk. 372. 
 
 pp. 829, 336, 342. 
 Kilpatrick v. Frost, 2 Grant's Caa, 
 
 196. p. 47. 
 Kimball u. Lamprey, 19 N. H. 215, 
 
 p. 55. 
 Kimball v. Whitney, 15 Ind. 280. 
 
 420. 
 Kincaid v. Howe, 10 Mass. 203. pp, 
 
 258, 577. 
 Kincaid v. Kincaid, 8 Humph. 17. 
 
 '347. 
 
TABLE OF CASES CITED. 
 
 lix 
 
 Kinchelow ». State, 5 Humph. 9. p, 
 
 483. 
 King v. Arundel, Hob. 109. p. 146 
 King v. Coulter, 2 Grant's Cas. 77. p 
 
 323. 
 King v. Dixon, 3 M. & S. 12. pp, 
 
 2C2, 467. 
 King v. Doolittle, 1 Head, 77. p. 14 
 King v. Fell, 1 Bald. 383. p. 28. 
 King v. Fowler, 11 Pick. 802. pp 
 
 192, 197. 
 King v. Harvey, 8 D. & R. 464. p. 
 
 262. 
 King v. Hawkins, 10 East, 211. pp. 
 
 94, 436. 
 King v. Hopkins, 67 N. H. 334. p, 
 
 668. 
 King v. Inhabitants of All Saints, 7 
 
 B. & C. 785. p. 30. 
 King v. Inhabitants of Gloucester- 
 shire, 2 Barn. & Aid. 386. pp. 
 
 448, 583, 684. 
 King v. Inhabitants of Harborne, 2 
 
 Ad. &E. 640. pp. 448, 584. 
 King v. Inhabitants of Hulcott, 6 
 
 T. R. 685. p. 28. 
 King o. Inhabitants of Somton, 5 Ad. 
 
 & Ell. 180. p. 118. 
 King v. Kelly, 28 Ind. 89. p. 75. 
 King v, Luffe, 8 East, 12. p. 115. 
 King v. Lyme Regis, 1 Dougl. 159. p. 
 
 34. 
 King ». 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. 206. p. 
 
 465. 
 King v. Whiston, 4 Ad. & Ell. 667. 
 
 p. 56. 
 Kingston v. Leslie, 10 S. & R. 883. 
 
 pp. 405, 406. 
 Kinney v. Hosea, 3 Harr. (Del.) 77. 
 
 pp. 370. 
 Kinsler v. Holmes, 2 S. C. 483. p. 
 
 320. 
 Kinhner v. Lewis, 27 Ind. 22. p. 
 
 353. 
 
 Eirkpatrick v. Langpher, 1 Cranch. 
 
 C. C. 85. p. 315. 
 Klein v. Landman, 29 Ho. 259. pp. 
 
 449, 685. 
 Knapp v. White, 23 Conn. 629. p. 
 
 272. 
 Knickerbocker v. People, 43 N. Y. 
 
 177. p. 516. 
 Knight v. Clements, 8 Ad. & El. 215. 
 
 p. 388. 
 Knight e. Coleman, 19 N. H. 118; 45 
 
 Am. Dec. 147. p. 414. 
 Knight v. Nepean, 2 M. & W. 895. 
 
 p. 201. 
 Knight v. Pugh, 4 "W. & S. 445. p. 
 
 77. 
 Kinsely v. Sampson, 100 III. 573. p. 
 
 89. 
 Knowles, Ex parte, 2 Cranch C. C. 
 
 676. p. 93. 
 Knowlton v. Culver, 1 Chand. 214. 
 
 p. 36. 
 Kraum «. McDowell, 8 N. & S. 138. 
 
 p. 661. 
 Krielu. Com., 6 Bush (Ky.), 362. p. 
 
 459. 
 
 Lackawanna Iron Co. v. Fales, 55 Pa. 
 
 St. 90. p. 65. 
 Lackey v. Bostwick, 54 Ga. 45. p. 
 
 35. 
 Lady Bryan Gold, etc., Co. v. Lady 
 
 Bryan Mining Co., 4 Mo. 414. p. 
 
 86. 
 Lady Stafford v. Llewellin, Skin. 78. 
 
 p. 417. 
 Lady Strathmore v. Bowes, 1 Ves. 22. 
 
 p. 145. 
 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. 
 Lnjoye v. Primm, 3 Mo. 529. p. 200. 
 Lake v. People, 1 Park. C. C. 539. p. 
 
 493. 
 Lakin v. Lakin, 34 Beav. 443. p. 239. 
 Lambe v. Orton, 29 L. J. (Ch.) 286. 
 
 p. 201. 
 
lx 
 
 TABLE OF CASES CITED. 
 
 Lancaster v. Washington L. Ins. Co., 
 
 62 Mo. 127. pp. 230, 232, 239. 
 Laneey v. Bryant, 30 Me. 406. p. 13. 
 Landis v. Scott, 32 Pa. St. 498. pp. 
 
 148, 149. 
 Landry v. Martin, 15 La. 1. p. 47. 
 Lane v. Farmer, 13 Ark. 64. p. 347, 
 Lane 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. Marks, 68 Ga. 435. p, 
 
 35. 
 Lapsley o. Grierson, 1 H. L. Cas. 500, 
 
 pp. 448, 584. 
 Laramore v. McKenzie, 00 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, 32 Ark. 764. 
 
 pp. 94, 436. 
 Lawhorn v. Carter, 11 Bush, 7. p. 
 
 556. 
 Lawrence, The, 15 Fed. Rep. 635. p. 
 
 120. 
 Lawrence v. State, 68 Ga. 289. p. 
 
 262. 
 Laws v. Rand, 3 C. B. (if. s.) 445. p. 
 
 89. 
 Lawson v. Obear, 7 Ala. 784. p. 69. 
 Lawson u . 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. 
 Leavenworth v. Brockway, 2 Hill, 201. 
 
 p. 372. 
 
 Leavitt v. Smith. 14 Ala. 279. p. 34. 
 Leconfield v. Lonsdale, L. R. 5 C. P. 
 
 657. p. 404. 
 Ledoux v. Jamison, 18 La. Ann. 130. 
 
 p. 54. 
 Leo v. Johnstone, L. R., 1 H. L. Sc. 
 
 42S. p. 35. 
 Lee 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. 
 Legg 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. 567. p. 77. 
 Leighton v. Orr, 44 Iowa, 680. p. 98. 
 Leiper v. Irwin, 5 Yerg. 97. p, 329. 
 Leland v. Cameron, 31 N. Y. 115. 
 
 p. 55. 
 Leman v. Neunham, 1 Ves. bt. 51. 
 
 p. 316. 
 Lenoir v. Rainey, 15 Ala. 667. p. 
 
 404. 
 Lepoit v. Browne, 1 Salk. 7. pp. 
 
 259, 577. 
 Leport v. Todd, 82 N. J. L. 128. p. 
 
 163. 
 Lesley v. Nones, 7 S. & R. 4 p. 
 
 320. 
 Leslie v. Fisher, 62 El. 118. p. 50. 
 Letcher v. Kennedy, 3 J. J. Marsh, 
 
 701. p. 34. 
 Letts v. Brooks, Hill & Denio, 361. 
 
 p. 193. 
 Levers v. Van Buskirk, 4 Pa. St. 314. 
 
 p. 330. 
 Levy «. Hodges, Jac. 585. p. 303. 
 Levy v. Merrill, 52 How. Pr. 360. p. 
 
 308. 
 Lewis i7. Morley, 4 Dev. & B. (L.) 
 
 323 ; 34 Am. Dec. 379. p. 2.10. 
 Lewis v. Post, 1 Ala. 65. p. C8. 
 Leyksiuff 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. 
 
 ki 
 
 Lilleshall, Re., 7 Q. B. 158. p. 174, 
 Lilly v. Waggoner, 27 111. 395. pp, 
 
 179, 280. 
 Lincoln v. Battelle, 6 Wend. 476, 
 
 p. 370. 
 
 Linn v. Montross, 6 Tex. 511. p. 55, 
 Linscott v. Trask, 85 Me. 150. p, 
 
 420. 
 Lindsay v. Oonn., etc., K. Co. 27 Vt, 
 
 643. p. 102. 
 Lipscomb v. DeLamos, 68 Ala. 592 
 
 346. 
 List v. Rodney, 83 Pa. St. 483. p, 
 
 303. 
 Little v. Herndon, 10 Wall. 81. p 
 
 381. 
 Little u. Marsh, 2 Ired. Eq. 28. p 
 
 140. 
 
 Little v. Palister, 4 Me. 269. p. 419, 
 Littlefield v. Inhabitants, 50 Me. 475, 
 
 p. 173. 
 Littlejohn v. Ferguson, 18 Gratt. 53. 
 
 pp. 98, 276. 
 Little Rock, etc., E. Co. v. Finley, 37 
 
 Ark. 562. p. 103. 
 Little Rock, etc., E. Co. v. Henson, 
 
 38 Ark. 415. p. 103. 
 Livingston v. Liviagston, 4 Johns. 
 
 Ch. 287. p. 316. 
 Livingston v. Eogers, 2 Johns. Cas, 
 
 488. p. 159. 
 Lobb v. Stanley, 5 Q. B. 574. p, 
 
 134. 
 Locke v. Huling, 24 Tex. 811. p 
 
 370. 
 Lockhart v. White, 18 Tex. 102. pp, 
 
 448, 449, 583, 584. 
 Loeffner v. State, 10 Ohio St. 598 
 
 p. 459. 
 Lomax v. Holmdon, 2 Str. 940. p 
 
 303. 
 Long v. McDougald, 23 Ala. 413 
 
 p. 84. 
 Long v. State, 46 Ind. 583. pp. 36, 
 
 93. 
 Loomis v. Green, 7 Me. 386. p. 149. 
 Loomis v. Mowry, 8 Hun, 311. p. 
 
 77. 
 Loomis v. Eiley, 24 111. 307. p. 13. 
 
 Lopez v. Andrews, 3 Man. & E. 329. 
 
 p. 417. 
 Lord Pelham v. Pickingill, 1 T. E, 
 
 381. p. 427. 
 Loring v. Steinman, 1 Mete. 210. p. 
 
 200. 
 Louden v. Walpole, 1 Ind. 321. p. 
 
 255. 
 Louisiana v. Carr, 25 La. An. 407. 
 
 p. 551. 
 Lowe «. Poulke, 103 HI. 58. p. 192. 
 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 v. Brooks, 23 La. Ann. 117. 
 
 pp. 69, 148. 
 Lucas v. Ladew, 28 Mo. 342. p. 
 
 359. 
 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. 
 Lumley v. Wagner, 1 De G. M. & G. 
 
 604. p. 121. 
 Lune v. Boston Marine Ins. Co., 6 
 
 Fed. Eep. 568. p. 102. 
 Lushington v. Boldero, 15 Beav. 1 
 
 p. 303. 
 Lyddon v. Ellison, 19 Beav. 565. p, 
 
 "303. 
 Lyle v. Bradford, 7 T. B. Mon. 116 
 
 p. 90. 
 Lynch v. Com., 77 Pa. St. 205. p, 
 
 459. 
 Lynde v. Dennison, 3 Conn. 391 
 
 p. 308. 
 
 Lyon v. Adde,- 63 Barb. 89. p. 308, 
 Lyon v. George, 44 Md. 295. pp, 
 
 17, 73. 
 Lyon v. Green Bay, etc., E. Co., 42 
 
 Wis. 538. p. 55. 
 Lyon v. Guild, 5 Heisk. 175. p. 
 
 327. 
 Lyon v. Odell, 65 N. T. 28. p. 308. 
 
lxii 
 
 TABLE OF 'CASES CITED. 
 
 Lyon o. Richmond, 2 Johns. Ch. 51. 
 
 p8. 
 Lytle v. Colts, 27 Pa. St. 193. p. 55. 
 
 M. 
 
 Madden v. State, 68 Ga. 563. p. 35. 
 Magee v. Scott, 9 Cush. 148. p. 
 
 164. 
 Maguire v. People, 5 N. T. (T. & C.) 
 
 682. p. 549. 
 Mahoney v. Middleton, 41 Cal. 41. p. 
 
 35. 
 Main, In re, 1 Sw. v. Tr. 225. p. 
 
 225. 
 Malarin v. V. S., 1 Wall. 288. p. 
 
 381. 
 Male v. Roberts, 3 Esp. 163. p. 369. 
 Mallory v. Stoller, 6 Ala. 801. p. 
 
 304. 
 Malpas v. Clement, 19 L. J. (Q. B.) 
 
 435. p. 89. 
 Manchester Bank v. Fellows, 28 N. H. 
 
 394. p. 51. 
 Manning v. Ins. Co., 100 U. S. 693. 
 
 p. 569. 
 Mansfield Coal, etc., «. McEnery, 10 
 
 Morris, 185. p. 573. 
 Mardis v. Shaekleford, 4 Ala. 493. 
 
 p. 68. 
 Margaret Gottfried's Case, 4 Leg. 
 
 Obs. 101. ■ pp. 496, 498. 
 Marine Investment Co. v. Haviside, 
 
 L. E.5H.L. Cas.624. p. 83. 
 Markel v. Evans, 47 Ind. 328. p, 
 
 27. 
 Marr v. Gilliam, 1 Cold. 488. p 
 
 403. 
 Marshall v. Oakes, 51 Me. 309. p. 
 
 279. 
 Marshall v. Stevens, 8 Humph, 159 
 
 47 Am. Dec. 601. p: 59. 
 Marshall v. Toms, 5 Q. B. 115. p 
 
 60. 
 Marsters v. Lash, 61 Cal. 623. p. 370, 
 Marston v. Downes, 1 Ad. & Ell. 32 
 
 p. 135. 
 Marston ». Forward, 5 Ala. 347. p 
 
 77. 
 
 Marston u. Wilcox, 2 111. 270. p. 
 
 844. 
 Martin v. Pishing Ins. Co., 20 Pick. 
 
 389 ; 32 Am. Deo. 220. pp. 102, 
 
 160. 
 Martin u. Hazard Pow. Co., 2 Col. 
 
 697. p. 370. 
 Martin v. State, 28 Ala. 71. p. 541. 
 Martindale v. Palkner, 2 C. B. 715. 
 
 pp. 7, 10. 
 Mason v. Mason, 1 Meriv. 307. p. 
 
 241. 
 Mason v. State, 82 Ark. 239. p. 435. 
 Mason v. Wash, Breese, 16. p. 370. 
 Mather v. Trinity Church, 3 S. & R. 
 
 609; 8 Am. Deo. 663. pp. 404, 
 
 416. 
 Matthews v. Coalton, 9 Mo. 705. p. 
 
 881. 
 Matthews v. Lanier, 33 Ark. 91. p. 
 
 95.. 
 Matthews v. Offley, 3 Sumn. 115. p. 
 
 664. 
 Matthews v. State, 9 Tex. (App.)138. 
 
 p. 537. 
 Matteson v. Ellsworth, S3 Wis. 488. 
 
 p. 353. 
 Mathias v. Misnard, 2 C. & P. 353. 
 
 p. 380. 
 Maverick v. Austin, 1 Bailey, 59. p. 
 
 84. 
 Mawich v. Elsey, 47 Mich. 10. p. 
 
 86. 
 Maxwell v. Deens, 46 Mich. 35. p, 
 
 36. 
 Maxcy v. Williamson Co., 72 HI. 206. 
 
 35. 
 May d. Gamble, 14 Pla. 467. p. 
 
 353. 
 Maybee v. Sniffen, 2 E. D. Smith, 1. 
 
 p. 384. 
 Mayher v. People, 10 Mich. 212. pp. 
 
 271, 473. 
 Mayhugh, Rosenthal, 1 Cinn. Sup, 
 
 Ct. 492. p. 200. 
 Maynard u. Maynard, 10 Mass. 456. 
 
 p. 303. 
 Mayor of Atlanta ■». Perdue, 50 Ga. 
 
 607. p. 72. 
 
TABLE OF CASES CITED. 
 
 Ixiii 
 
 Mayor of Baltimore o. Baltimore, 
 
 etc., B. Co., 6 Gill, 288 ; 48 Am. 
 
 Dec. 580. p. 68. 
 Mayor of Baltimore v. Norman, 4 Md. 
 
 852. pp. 453, 589. 
 Mayor of Kingston v. Horner, 1 
 
 Cowp. 102. pp. 330, 427. 
 Mead v. Parker, 115 Mass. 413. p. 
 
 261. 
 Mears v. Graham, 8 Blackf.144. pp. 
 
 6, 264. 
 Mechanic's Bk. v. Wright, 53 Mo. 153. 
 
 p. 356. 
 Mechanic's, etc., Bk. o. Union Bk., 
 
 22 Wall. 276. pp. 27, 47. 
 Medlock v. Brown, 4 Mo. 379. p. 20. 
 Meech v. Smith, 7 Wend. 315. pp. 
 
 16, 73, 557. 
 Meighen v. Bank, 25 Penn. St. '288. 
 
 p. 185. 
 Meldrum v. Clark, Morris (la ), 130. 
 
 p. 89. 
 Melledge v. Boston Iron Co., 5 Cush. 
 
 158. pp. 353, 354. 
 Melvin v. Locks & Canals, 17 Pick. 
 
 255. p. 403. 
 Melvin v. Stevens, 84 N. C. 78. p. 70. 
 Mendenhall v. Gately, 18 Ind. 150. 
 
 p. 358. 
 Menkins v. Lightner, 18 111. 282. p. 
 
 179. 
 Mercer v. Doe, 6 Ind. 80. 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. 
 
 1 Cal. 617. p. 34. 
 Merrill v. Douglass, 14 Kas. 304. p. 
 
 59. 
 Merrill v. Emery, 10 Pick. 507. p. 
 
 304. 
 Merrill v. Rhodes, 37 Ala. 452. p. 
 
 304. 
 Merrills v. Swift, 18 Conn. 207 ; 46 
 
 Am. Dec. 315. p. 303. 
 Merritu. Baldwin, 6 Wis. 439. p. 34. 
 Mirritt v. Thompson, 1 Hilt. 550. p. 
 
 224. 
 
 Mervin v. Ward, 15 Conn. 377. p. 
 
 186. 
 Messer v. Lewis, 20 Tex. 219. p. 370. 
 Meyer v. McCabe, 73 Mo. 236. p. 
 
 858. 
 Mickee v. Hicks, 19 Kas. 578. p. 36. 
 Miles w. Collins, 1 Mete. (Ky.) 311. 
 
 p. 360. 
 Miles «. Knight, 12 Jur. 666. p. 303. 
 Miller v. Beates, 3 S. & P. 490 ; 8 
 
 Am. Dec. 658. p. 230. 
 Miller v. Burke, 68 N. T. 625. pp. 
 
 18, 74. 
 Miller v. Evans, 2 Cranch 0. C. 72. 
 
 p. 323. 
 Miller v. Hackley, 5 Johns. 383. p. 
 
 186. 
 Miller v. Hays, 26 Ind. 380. p. 54. 
 Miller v. Ins. Co., 2 MeCord (S. C), 
 
 836; 13 Am. Dec. 734. p. 102. 
 Miller v. Jones, 32 Ark. 337. p. 124. 
 Miller v. Kingsbury, 8 Pla. 356. p. 
 
 35. 
 Miller v. Mclntyre, 9 Ala. 638 . p. 
 
 77. 
 Miller v. People, 39 111. 466. p. 542. 
 Miller v. Smith, 16 Wend. 425. p. 
 
 320. 
 Miller v. Southwestern K. Co., 55 Ga. 
 
 143. p. 58. 
 Miliken v. Martin, 66 111. 13. p. 331. 
 Millay v. Butts, 35 Me. 139. p. 420. 
 Milledge v. Gardner, 33 Ga. 397. p. 
 
 330. 
 Milleham's Trusts, 15 Beav. 537. p. 
 
 238. 
 Millner's Estate, L. E. 14 Eq. 245. p. 
 
 245. 
 Million ». Eiley, 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 Vt. 59. p. 347. 
 Mills o. Johnson, 17 Wis. 598. p. 
 
 55. 
 Miltenbergeri). Coyle, 27 Pa. St. 170. 
 
 p. 154. 
 Minor v. Edwards, 12 Mo. 137; 49 
 
 Am. Dec. 121. p. 68. 
 
Ixiv 
 
 TABLE OF CASES CITED. 
 
 Minor v. Mechanics' Bk., 1 Pet. 46 
 
 p. 35. 
 Minter v. Crommelen, 18 How. 87. 
 
 p. 55. 
 Mitchell v. Bromherger, 2 Nev. 53 
 
 p. 36. 
 Mitchell v. Mitchell, 8 Ala. 421. p, 
 
 304. 
 Mitchell v. Napier, 22 Tex. 120. p, 
 
 120. 
 Mitchell v. Ryan, 3 Ohio St. 377. p, 
 
 304. 
 Mitchells. State, 58 Ala. 417. p. 
 Mitchell v. Walker, 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 i.. Varden, 5 Cranch C. C. 
 
 658. p. 200. 
 Mondragon v. State, 33 Tex. 480. p. 
 
 618. 
 Monroe v. Douglass, 5 N. T. 452. p. 
 
 370. 
 Monson v. Palmer, 8 Allen, 551. p„ 
 
 565. 
 Montgomery v. Bevans, 1 Sawy. 660. 
 
 p. 201. 
 Montgomery v. Bruere, 4 N. J. (L.) 
 
 266. p. 342. 
 Montgomery v. Merrill, 62 Cal. 386. 
 
 p. 34. 
 Montgomery v. Montgomery, 3 Barb. 
 
 Ch. 132. p. 103. 
 Montgomery Plank Road Co. v. 
 
 Webb, 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. 890. p. 
 
 428. 
 Moore v. Neil, 39 III. 256. p. 34. 
 
 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, 33 111. 358. pp. 
 
 38, 57. 
 Mordecai v. Beall, 8 Port. 535. p. 
 
 124. 
 Morford v. Peck, 46 Conn. 384, p, 
 
 100. 
 Morgan v. Chetwynd, 4 P. & P. 451 
 
 p. 280. 
 Morgan v. Ravey, 6 H. & N. 265. p, 
 
 558. 
 Morgan v. State, 12 Ind. 419. pp. 
 
 34, 39. 
 Morgan o. 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. & P. 163. pp, 
 
 116, 117. 
 Morris v. Davis, 5 CI. & P. 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. 34. 
 Morris v. Vanderin, 1 Dall. 67. p. 
 
 386. 
 Morrison v. K. Y. Cent. R. Co., 63 N. 
 
 T. 043. p. 192. 
 Morse v. Presby, 25 N. H. 302. p. 
 
 33. 
 Mortimer v. Craddock, 17 Jur. 45. 
 
 p. 141. 
 Morton v. Rogers, 14 Wend. 576. p. 
 
 77. 
 Mostyn v . Pabrigas, Cowp. 174. p. 
 
 369. 
 Motz v. Moreau, 13 Moore P. C. 376. 
 
 p. 309. 
 Moye v. State, 66 Ga. 740. pp. 529, 
 
 545. 
 Moyes v. Griffith, 35 Cal. 556. p. 85. 
 
TABLE OF CASES CITED. 
 
 lxv 
 
 Muekleroy a. Bethany, 27 Tex. 551. 
 
 p. 397. 
 Mullaly v. "Walsh, Irish Eep. 6 C. L. 
 
 815. p. 198. 
 Mullen v. Pryor, 12 Mo. 307. p. 
 
 174. 
 Munro v. Cooper, 5 Pick. 412. p. 77. 
 Munroe v. Gates, 48 Me. 463. pp. 82, 
 
 87. 
 Murdoch v. State, 68 Ala. 567. pp. 
 
 190, 681. 
 Murphy y. Coats, 33 N. J. (Bq.) 424. 
 
 p. 3C4. 
 Murphy v. Com., 23 G-rat. 960. pp. 
 
 26G, 469. 
 Murphy v. Collins, 121 Mass. 6. p. 
 
 373. 
 Murphy, In re, 8 C. & P. 310. p. 47. 
 Murphy v. Orr, 32 111. 489. p. 167. 
 Murphy v. People, 37 111. 447. pp. 
 
 266, 469. 
 Murphy v. State, 54 Ala. 178. p. 39. 
 Murphy u. State, 37 Ala. 142. pp. 
 
 266, 469, 473. 
 Murphy's Case, 4 City Hall Eec. 42. 
 
 p. 513. 
 Murray v. Kelley, 23 Kas. 666. p. 36. 
 Murray v. Murray, 6 Ore. 18. p. 583. 
 Murray,- Re, 1 Curt. 596. p. 241. 
 Murrell v. State, 46 Ala. 89. p. 537. 
 Musser v. Price, 4 East, 197. p. 354. 
 Mussey v. White, 3 Me. 200. p. 55. 
 Myers v. Com., 83 Pa. St. 141. p. 
 
 459. 
 Myers v. Turner, 17 HI. 179. p. 19. 
 McAleerD.McMurray, 58 Pa. St. 126. 
 
 p. 569. 
 MeAlexander v. Wright, 3 T. B. 
 
 Mon. 1&9. p. 60. 
 McAllister v. Eeab, 4 Wend. 483 ; 8 
 
 Id. 109. pp. 16, 73. 
 McAlister v. State, 17 Ala. 434. pp. 
 
 179, 459. 
 McAnally v. O'Neal, 56 Ala. 299. p. 
 
 358. 
 McArthur v. Carrie, 32 Ala. 75. p. 
 
 420. 
 McCall v Doe, 17 Ala. 533. p. 404. 
 McCaller v. State, 49 Ala. 40. p. 39. 
 e 
 
 McCarteeu.jCammel, 1 Barb. Ch. 214, 
 
 p. 214. 
 McCartney v. Bone, 40 Ala. 533. p, 
 
 320. 
 McCarty v. McCarty, 2 Strobh. (L.) 6 
 
 47 Am. Dec. 585. p. 417. 
 McClellan v. Crofton, 6 Me. 334. p, 
 
 336. 
 McClure v. Hill, 36 Ark. 273. p. 28. 
 McComb v. Wright, 5 Johns. Ch 
 
 263. p. 197. 
 McCord v. High, 24 Iowa, 336. pp. 
 
 236, 469, 473. 
 McCormick v. Fitzmorris, 39 Mo. 24. 
 
 p. 381. 
 McCorry v. King, 3 Humph. 267; 39 
 
 Am. Dec. 165. p. 404. 
 McCraney v. Alden, 46 Barb. 274. p. 
 
 372. 
 McCulloeh v. Norwood, 58 N. Y. 567. 
 
 p. 370. 
 McCutchin v. Piatt, 22 Wis. 661. p. 
 
 55. 
 McDonald v. Nelson, 2 Cow. 139 ; 14 
 
 Am. Dec. 43 (1823). p. 53. 
 McDanough o. O'Neil, 113 Mass. 92. 
 
 p. 120. 
 McDowell v. Goldsmith, 6 Md. 319. 
 
 p. 78. 
 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. 
 McKee „. Copelin, 2 Cent. L. J. 813. 
 
 p. 213. 
 McKee v. McKee, 48 Ga. 332. p. 35. 
 McKenzie v. State, 26 Ark. 334. pp. 
 
 459, 552. 
 McKenzie v. Stevens, 19 Ala. 692. p. 
 
 175. 
 McKinder v. Liltlejohn, 4 Ired. (L.) 
 
 66, 198. p. 336. 
 McLain v. Winchester, 17 Mo. 49. p # 
 
 279. 
 McLean ». State, 16 Ala. 672. p. 
 
 179. 
 McLear v. Hunsicker, 29 La. Ann. 
 
 539. p. 358. 
 
lxvi 
 
 TABLE OF CASKS CITED. 
 
 McLellan v. Crofton, 6 Me. 307. pp. 
 
 308, 340. 
 McLeod v. Wakeley, 3 C. & P. 311. 
 
 p. 189. 
 Mellahon v. Harrison, 6 N. Y. 443. 
 
 p. 181. 
 Mcllahon v. McElroy, Ir. Eep. 5 Eq. 
 . 1. p. 237. 
 McMichacl v. Hardee, 68 Ga. 831. p. 
 
 35. 
 McMicken v. Beauchamp, 2 La. 290. 
 
 p. 381. 
 McMinn v. Whelan, 27 Cal. 300. pp. 
 
 33, 257. 
 McMullan v. Mackenzie, 2 G. Greene 
 
 868. p. 68. 
 MeNair v. Hunt, 5 Mo. 300. p. 54. 
 MeNair v. Eagland, 1 Dev. (Eq.) 533. 
 
 p. 200. 
 McNeill v. State, 47 Ala. 503. p. 39. 
 McNorton v. Akera, 24 Iowa, 369. 
 
 pp. 34, 39. 
 MeNulty v, Hurd, 86 N. Y. 647. p. 
 
 305. 
 McPherson v. Cunliff, 11 S. & E. 422. 
 
 p. 427. 
 McEeynoldsj>.McCord,6 Watts, 288. 
 p. 156. 
 
 N. 
 
 Naisor u. Brockway, Eich. Eq. Caa. 
 
 449. p. 200. 
 Napper v. Saundera, Hutton, 118. p. 
 
 195. 
 Nebbettu. Cunningham, 27 Miss. 292. 
 
 p. 54. 
 Nelson „. 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. Nichols, 12 Hun, 604. p. 
 
 241. 
 Newby v. Eeed, Park on Ins. 85. p. 
 
 227. 
 Newcomb v. Presbury, 8 Mete. 406. 
 
 p. 390. 
 Me well ii. Nichols, 75 N. Y. 78. p. 
 
 243. 
 
 New Haven Co. Bk. v. Mitchell, 15 
 
 Conn. 206. p. 69. 
 Newman v. Jenkins, 10 Pick. 515. p, 
 
 231. . 
 Newman v. Newman, 1 Stark. 101. 
 
 p. 342. 
 Newman v. Studley, 5 Mo. 291. p. 
 
 403. 
 New Orleans, etc., E. Co. v. Jones, 68 
 
 Ala. 48. p. 405. 
 Newsom v . Davis, 20 Tex. 425. p. 
 
 69. 
 Newton v. Caberry, 5 Cranch C. C. 
 
 632. p. 304. 
 Newton v. Gocke, 10 Ark. 169. p. 
 
 379. 
 Niantic Bank v. Dennis, 37 M. 381. 
 
 p. 57. 
 Nickerson u. Einger, 76 N. Y. 279. 
 
 p. 77. 
 Nichol v. Crittenden, 55 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 Vt. 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, Fost. 129. p. 544. 
 Norris v. Harris, 15 Cal. 226. p. 
 
 366. 
 Norris, Ee, 1 Sw. & Tr. 6. p. 232. 
 Northrup v. Trask, 39 Wis. 515. p. 
 
 69. 
 North Eiver Meadow Co. v. Shrews- 
 bury Church, 22 N. J. L. 427. p. 
 382. 
 Nosier v. Haynes, 2 Nev. 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. 
 
 lxvii 
 
 O. 
 
 Oaks v. Harrison, 24 Iowa, 179. p. 98. 
 Obart v. Letson, 17 N. J. (L.) 78. p. 
 
 344. 
 O'Brien v. Henry, 6 Ala. 787. p. 419. 
 O'Brien v. Norris, 16 Md. 122. p. 69. 
 O'Connell v. People, 87 N. Y. 380- 
 
 p. 459. 
 O'Gara v. Eisenlohr, 38 N. Y. 296. 
 
 pp. 192, 556. 
 Ogden v. Saunders, 12 Wheat. 213. 
 
 p. 563. 
 O'Hara 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. 
 Oldham v. Wolley, 8 B. & C. 22. p. 
 
 197. 
 Oldnall v. Deakin, 3 0. & P. 404. p. 
 i 197. 
 Ogletree o. State, 28 Ala. 693. p. 
 
 447. 
 Oliver v. State, 17 Ala. 587. p. 
 
 473. 
 O'Neil ». N". Y, etc., Mining Co., 3 
 
 Nev. 111. p, 165. 
 Onesti v. Freelon, 61 Cal. 625. p. 34. 
 Onomaney u. Stillwell, 23 Beav. 328. 
 
 p. 200. 
 Oppenheim v. De Wolf, 3 Sandf. Ch. 
 
 571. p. 224. 
 Ortwein v. Com., 76 Pa. St. 423. p. 
 
 459. 
 Orvia v. Newall, 17 Conn. 97. p. 69. 
 Osborn ». Allen, 26 N. J. (L.) 388. 
 
 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. 467. p. 34. 
 Overhill's Trusts, 17 Jur. 342. p. 303. 
 Overstreet v. State, 46 Ala. 30. p. 
 
 493. 
 Owen v. Boyle, 15 Me. 147 ; 32 Am. 
 
 Dec. 143. pp. 366, 379. 
 Owen v. Flack, 2 Sim. & Stu. 606. 
 
 p. 145. 
 Owen v. State, 25 Ind. 371. p. 34. 
 
 P. 
 
 Padgett v. Lawrence, 10 Paige, 170.' 
 
 p. 577. 
 Page v. Dennison, 1 Grant's Cas. 379. 
 
 p. 108. 
 Page v. Findley, 5 Tex. 391. p. 176. 
 Pages. Stephens, 23 Mich. 357. p. 
 
 122. 
 Paine v. Dwinal, 53 Me. 63. pp. 354, 
 
 355. 
 Paine v. Edsell, 19 Pa. St. 178. p. 
 
 386. 
 Paine v. Noelke, 43 N. Y. (S. C.) 176. 
 
 p. 358. 
 Paine v. Tutwiler, 27 Gratt. 410. p 
 
 55. 
 Palmer v. Baling, 8 Cal. 385 p. 53. 
 Palmer v. Oakley, 2 Doug. (Mich.) ; 
 
 47 Am. Dec. 1. pp. 27, 29. 
 Palmyra v. Martin, 26 Mo. 593. p. 
 
 13. 
 Pannell v. Com., 86 Pa. St. 268. p. 
 
 459. 
 Park v. Harrison, 8 Humph. 413. p. 
 
 420. 
 Parker v. Altschul, 60 Cal. 380. p. 
 
 34. 
 Parker v. Boston, etc., E. Co., 3 Cush. 
 
 107 ; 50 Am. Dec. 700. p. 34. 
 Parker v. Poote, 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. 
 
 479. p. 149. 
 Parsons v. Lloyd, 3 Wils. 341. p. 
 
 34. 
 Patch's Case, London, 1806. p. 
 
 509. 
 Patee v. Pelton, 48 Vt. 182. pp. 98, 
 
 440. 
 Paton v. Coit, 5 Mich, 505. p. 77. 
 Patrick v. Hallet, 1 Johns. 246. p. 
 
 102. 
 
Ixviii 
 
 TABLE OF CASES CITED. 
 
 Patterson v. Black, Park on Ins. 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. 
 
 449, 585. 
 Pattie v. "Wilson, 25 Kas, 326. p. 
 
 308. 
 Pattison v. Prior, 18 Ind. 440. p. 7. 
 Patton v. Ast, 7 S. & B. 116. p. 
 
 344. 
 Pausch v. Guerrarad, 67 Ga. 319. p. 
 
 54. 
 Paxton v. Boyce, 1 Tex. 317. p. 
 
 93. 
 Paxton v. Bueker, 15 W. Va. 547. 
 
 p. 36. 
 Payne v. Long, 19 Ves. 571. p. 303. 
 Peacock v. Bell, 1 Saund. 74. pp. 
 
 28, 29. 
 Pearce v. Whale, 5 B. & C. 38. p. 
 
 49. 
 Peaslee v. Bobbins 3 Mete. 164. p. 
 
 70. 
 Peaveyfl. Tilton, 18 K H. 151; 45 
 
 Am. Dec. 365. p. 303. 
 Peck, Be, 29 h. J. (P. & M.) 95. p. 
 
 201. 
 Pell v. Ball, 1 Cheeves (Eq.) S. C. 
 
 99. pp. 246, 247. 
 Pelton 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 
 
 Eep.6 Eq. 171. p. 192. 
 Pennington v. Yell, 11 Ark. 236. p. 
 
 569. 
 Pennsylvania B. Co. v. Brooks, 7 P. P. 
 
 Smith, 339. p. 573. 
 Penobscot Boon Co. v. Lamson, 16 
 
 Me. 224. p. 50. 
 Penwarden 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. 
 People©. 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. 63. p. 
 
 563. 
 People v. Chambers, 118 Cal/382. p- 
 
 518. 
 People v. Coffman, 24 Cal. 233. p. 
 
 459. 
 People ». Cole, 84 111. 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. Finney, 38 Mich. 482. 
 
 459. 
 
 People v. Peilen, 58 Cal. 218. p. 583, 
 People v. Puqua, 61 Cal. 377. p. 34. 
 People v. Garbutt, 17 Mich. 9. p, 
 
 459. 
 
 People o. Garcia, 25 Cal. 531. p. 37. 
 People v. Gardner, 2 Wheel. 23. p, 
 
 541. 
 People v. Gray, 72 Bl. 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. Hendrickson, 1 Park. C. C- 
 
 422. pp. 496, 499. 
 People v. Hessing, 28 111. 410. pp. 
 
 35. 569. 
 People v. How, 2 Wheel. Cr. Cas. 
 
 223. pp. 499, 511, 512. 
 People v. Hurley, 60 Cal. 76. p. 518. 
 
TABLE OF CASES CITED. 
 
 Ixix 
 
 People v. Johnson, 61 Cal. 142. p. 
 
 442. 
 People v. Kel8er,3 Wheel. Cr. Caa. 40. 
 
 p. 498. 
 People v. Lambert, 5 Mich. 356. p. 
 
 370. 
 People v. Lock Wing, 61 Cal. 381. 
 
 p. (537. 
 People -u. Manhattan Co. 9 Wend, 
 
 651. p. 176. 
 People v. March, 6 Cal. 543. pp. 179. 
 
 266, 469. 
 People v. Marion, 29 Mich. 31. p. 
 
 143. 
 People *. Mellon, 40 Cal. 648. p. 38. 
 People v. Messersmith, 57 Cal. 575. 
 
 p. 459. 
 People ». McDowell, 47 Cal. 134. p. 
 
 459. 
 People v. McLeod, 1 Hill, 407. p. 
 
 176. 
 Peoples. McWhorter, 4 Barb. 438. p. 
 
 551. 
 People v. Orcutt, 1 Park. C. C. 252. 
 
 pp. 264, 468. 
 Peoples. Peverelly, Burr. Ev. 347. p. 
 
 509. 
 People v. Phoenix Bk., 4 Bosw. 364. 
 
 p. 55. 
 People v. Pitcher, 15 Mich. 397. p. 
 
 638. 
 People v. Preston, 1 Wheel. 41. p. 
 
 518. 
 People v. Rathbun, 21 Wend. 509. pp. 
 
 538, 539. 
 People v. Robinson, 1 Park. C. C. 649- 
 
 p. 493 
 People v. Sing Linn, 61 Cal. 538. p. 
 
 39. 
 People v. Smith, 59 Cal. 365. p. 53. 
 People v. Smith, 67 Cal. 130. pp. 
 
 179, 459. 
 People v. Snyder, 41 N. Y. 397. pp. 
 
 55, 84. 
 People v. Squires, 49 Mich. 487. p. 
 
 176. 
 People v. Stanley, 47 Cal. 117. p. 537. 
 People v. Stout, 4 Park. 71. p. 506. 
 People v. Strong, 46 Cal. 802. p. 538. 
 
 People v. Stuart, 4 Cal. 218. p. 35. 
 People v. Thayer, 1 Park. C. C. 695. 
 
 p. 433. 
 People v. Townsend, 3 Hill, 481. pp. 
 
 281, 292. 
 People v. Tyler, 36 Cal. 522. p. 552. 
 People v. Walden, 61 Cal. 6S8. p. 
 
 663. 
 People v. Wilson, 49 Cal. 14. p. 459. 
 People v. Wilson, 30 Mich. 486. 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. 
 
 38. 
 People u.Wreden, 12 Ky. 682. p. 459- 
 Perkins v. Nugent, 45 Mich. 150. p. 
 
 64. 
 Perkins v. Prout, 47 N. H. 389. p. 
 
 77. 
 Perkins v. Scott, 57 N. H. 55. p. 568. 
 Perrin v. Kean, 19 Me. 355. p. 354. 
 Perrin v. Noyes, 39 Me. 384. p. 77. 
 Perry County v. E. Co., 65 Ala. 391. 
 
 p. 53. 
 Peter v. Beverly, 10 Pet. 632. pp. 
 
 354, 355. 
 Peterkin 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, 30 Vt. 277. p. 183 
 Phelps «. Cutler, 4 Gray, 137. p. 420 
 Phelps v. Hartwell, 1 Mass. 71. p. 
 
 280. 
 Phelps v. Ratcliffe, 3 Bush, 334. p. 
 
 64. 
 Phene's Trusts, Re, L. R. 5 Ch. App. 
 
 139- p. 201. 
 Philadelphia City Pass. R. Co. v. 
 
 Her.rice, 92 Pa. St. 431. p. 570. 
 Phillips v. Allen, 2 Allen, 463. pp. 
 
 108, 113, 118. 
 Phillips v. Evans, 64 Mo. 17. p. 248. 
 Phillips v. Morrison, 3 Bibb, 105; 6 
 
 Am. Dec. 638. p. 321. 
 
lxx 
 
 TABLE OF CASES CITED. 
 
 Phillipson v. Hayter, L. K. 6 C. P. 
 
 38. p. 280. 
 Pickering v. Pickering, 6 N. H. 124. 
 
 p. 280. 
 Pickering v. Stamford, 2 Ves. jr. 583- 
 
 p. 309. 
 Pickett v. Packham, L. E. 4 Ch. App. 
 
 190. p. 163. 
 Picquet *. Swan, 5 Mason, 40. p. 
 
 45. 
 Piel v. Brayer, 30 Ind. 332. p. 58. 
 Pierce v. Cloud, 6 Wright, 102. p. 
 
 407. 
 Pierce v. Edington, 88 Ark. 150. p. 
 
 38. 
 Pierce v. State, 53 Ga. 365. p. 179. 
 Pierpont v. Eowle, 2 Woodb. & M. 
 
 23. pp. 18, 74. 
 Pierre v. Fernald, 26 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. 
 
 563. 
 Piper «. "Wade, 57 Ga. 223. p. 353. 
 Pipes v. Hardesty, 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. 2G0. p. 60. 
 Plimpton v. Somerset, 33 Vt. 283. p. 
 
 567. 
 Plowes v. Bossey, 31 L. J. (Ch.) 680. 
 
 pp. 114, 118. 
 Plummer v. Com, 1 Bush, 76. pp. 
 
 637, 539. 
 Poe v. Darrah, 20 Ala. 289. p. 164. 
 Pulk v. State, 19 Ind. 170. p. 459. 
 Polly, The, 2 Rob. Adm. 3S1. p. 151. 
 Pomeroy v. Ainsworth, 22 Barb. 118. 
 
 p. 372. 
 
 Pomeroy u. Benton, 77 Mo. 64. p. 
 
 148. 
 Pomeroy v. Bice, 16 Pick. 22. p. 354. 
 Pool v. Morris, 29 Ga. 395. p. 276. 
 Pooley v. Goodwin, 4 Ad. & Ell. 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. Eussell, 13 Pick. 69. p. 84. 
 Prather v. Palmer, 4 Ark. 456. p. 
 
 172. 
 Pratt v. Lamson, 6 Allen, 457. p. 64. 
 Prescott v. 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. 
 Prevost v. Gratz, Pet. C. C. 364. p. 
 
 386. 
 Price v. Com., 21 Gratt. 146. pp. 
 
 518, 524. 
 Price v. Govor, 40 Md. 102. pp.99, 
 
 440. 
 Price i>. Powell, 3 N. T. 322. p. 
 
 420. 
 
TABLE OF CASES CITED. 
 
 Ixxi 
 
 Price o. Tallman, 1 N. J. (L.) 447. 
 
 p. 157. 
 Primm v. Stewart, 7 Tex. 183. p. 
 
 200. 
 Printup v. Johnson, 19 Ga. 75. p. 
 
 84. 
 Printup v. Mitchell, 17 Ga. 564. p. 
 
 383. 
 Prior v. State, 5 Tex. (App.) 489. p. 
 
 55. 
 Proctor v. McCall, 2 Bailey (S. C). 
 
 134 ; 23 Am. Dec. 134. p. 200. 
 Procurator-Gen. v. Colvin, 1 Hagg. 
 
 Ecc.92. p. 241*. 
 Proprietors v. Bullard, 2 Mete. 363. 
 
 p. 403. 
 Prudential Insurance Co. v. Edmonds> 
 
 2 App. Gas. 487. p. 216. 
 Puckett v. State, 1 Sneed, 356. p. 
 
 200. 
 Pullen v. Hutchinson, 25 Me. 242. p. 
 
 89. 
 Pullen t>. Shaw, 3 Dev. 238. p. 394. 
 Pursley v. Hays, 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 v. Mayor Tewkesbury, L. K. 3 
 
 Q. B. 629. pp. 7, 454. 
 Queen v. Smith, 1 Cox C. C. 260. p. 
 
 279. 
 Quinebaug Bk. v. Brewster, 30 Conn. 
 
 659. pp. 270. 
 
 E. 
 
 E. v. , 2 C. & P. 459. p. 525. 
 
 E. v. Adams, 3 C. & P. 600. p. 525. 
 E. ■». Allerton, 1 Ld. Eay, 122. pp. 
 
 109, 110. 
 E. v. Appleby, 3 Stark. 33. p. 549. 
 E. «. Archer, 1 Moody, 145. pp. 279, 
 
 288, 294. 
 E. 17. Atkinson, 1 Cr. & Dix. 161. p. 
 
 525. 
 E. 17. Bailey, 7 C. & P. 264. p. 260. 
 
 E. i7. Barber, 4 Cox C. C. 272. p. 294. 
 E. v . Barbot, 18 How. St. Tr. 1261. 
 
 p. 509. 
 E. i7. Bishop, 2 London Leg. Obs. 39. 
 
 p. 495. 
 E. 17. Blandy, 18 How. St. Tr. 1118. 
 
 p. 496, 499. 
 E. v. Bloomsbury, 4 El. & B. 520. p. 
 
 29. 
 E. v. Bowen, 13 Q. B. 790. p. 35. 
 E. v. Budd, 5 Esp. 230 p. 175. 
 E. 17. Buncombe, 1 Cox C. C. 183. p. 
 
 289. 
 K. 17. Burdett, 4 B. & Aid. 161. p. 556. 
 E. i7. Burdock, Best on Pres., sect. 196. 
 
 p. 496. 
 
 E. i7. Carlisle, 2 B. & Ad. 367. ' p. 35. 
 E. i7. Carpenter, 2 Show. 47. p. 427. 
 E. 17. Cleves, 4 Car. & P. 221. pp. 
 
 489, 505. 
 E. 17. Cole, 1 Phil. Ev. 508, p. 48S 
 E. v. Connolly, 2 Lewin, 229. pp. 
 
 279, 288. 
 
 E. 17. Cooper, 3 C. & K. 318. p. 525. 
 E. v. Cooper, 1 Q. B. D. 19. p. 487, 
 E. ». Corders, Phill. Tr. 221. p 
 
 509. 
 E. 0. Cotton, 12 Cox C. C. 400. p. 
 
 490. 
 E. i7. Crowhurst, 1 C. & K. 370. p, 
 
 522. 
 E. u. Cruise, 8 C. & P. 546. p. 275, 
 E. <7. Cruise, 2 Moody C. C. 53 
 
 p. 294. 
 R. 17. Cruttenden, 6 Jur. 267. p. 525, 
 E. v . Dewhirst, 2 Stark. Ev. 449. p, 
 
 525. 
 E. v. Donellan, Phil. Tr. 126. pp, 
 
 530, 541. 
 E. 17. Donnall, Wills' Circ. Ev. 188 
 
 p. 541. 
 E. 17. Dorsett, 2 C. & K. 306. pp, 
 
 490, 508. 
 
 Eex 17. Eldershaw, 14 Eng. Com. Law, 
 
 336. p. 286. 
 E. v. Fanning, E. & E. 207. pp. 262, 
 
 4G7. 
 E. 17. Francis, L. E. 2 C. C. E. 128. 
 
 p. 487. 
 
lsxii 
 
 TABLE OF CASES CITED. 
 
 E. v. Gamer, 3 Post. & F. 681. p. 
 
 490. 
 E. v. Gearing, 18 L. J., M. C. 215 ; 
 
 pp. 490, 508. 
 E. v. Gauche, 2 Salk.441. p. 28. 
 E v. Gray, 4 Fost. & F. 1102; p. 
 
 489, 508. 
 E. v. Green, 7 How. St. Tr. 159. p. 
 
 643. 
 E. v. Harrison, 12 How. St. Tr. 833. 
 
 pp. 496, 512. 
 E. v. Hay, 1 W. Black. 646. p. 241. 
 E. v. Heath, "Wills' Ev. 98. p. 515. 
 E. v. Hewlett, 2 Euss. on Cr. 728. p. 
 
 525. 
 E. v. Hill, 2 Moody, 30. pp. 264, 467. 
 E. v. Hill, 20 How. St. Tr. 1317. p. 
 
 509. 
 E. v. Howard, 1 Moo. & Bob. 187. n. 
 
 50. 
 E. b. Hughes, 2 Lewin, 230. pp. 
 
 288, 294. 
 E. v. Huling, 1 Strange, 7. p. 28. 
 E. v. Inhabitants of Mansfield, 1 Q. 
 
 B. 444. pp. 113,115. 
 E. o. Jones, 2 Camp. 131. p. 47. 
 E. v. Knight, 3 C. & P. 116. pp. 279, 
 
 290. 
 E. v. Long Buckly, 7 East, 45. pp. 
 
 35, 427. 
 E. v. Luff, 8 East, 198. p. 108. 
 E. v. Mainwaring, 1 Dears. & B. 
 
 132. p. 437. 
 E. v. Matthews, 1 Den. C. 0. 549. p. 
 
 279. 
 E. v. Mazagora, E. & E. 291. pp. 264, 
 
 468. 
 E. v. Monkhouse, 4 Cox, 55. p. 274. 
 E. v. Murray, 1 Salk. 122. p. 109. 
 E. u. Nairn, 19 How. St. Tr. 1296. 
 
 p. 498. 
 E. v. Nash, 2 Den. C. C. 498. pp. 
 
 264, 467. 
 E. v. Norkutt, 14 How. St. Tr. 1324. 
 
 p. 543. 
 E. v. Ogilvie, 19 How. St. Tr. 1290. 
 
 pp. 611, 512, 534. 
 E. v. Owen, 4 O. & P. 236. p. 279, 
 
 283. 
 
 B. 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. 
 E. v. Phillips, 34 Eng. Com. Law, 
 
 763. p. 286. 
 E. v. Price, 8 C. & P. 19. pp. 279, 294. 
 E. v. Bees, 6 C. & P. 606. p. 50. 
 E. v. Eiehardson, Burr. Cir. Ev. 243. 
 
 p. 505. 
 E. v. Eiehardson, .2 Fost. & F. 343; 
 
 p. 489. 
 E. v. Eoden, 12 Cox C. C. 630. p. 
 
 490. 
 E. v. Eogers, 2 Camp. 654. p. 461. 
 E. v. Eush, Burr. Ev. 435. p. 642. 
 E. v. Sheppard, E. & E. 160. pp. 
 
 264, 467. 
 E. v. Smith, 1 Cox, 260. p. 281. 
 E. v. Smith, 2 C. & K. 208. p. 522. 
 E. o. Smith, 2 Dears. & B. 553. p. 
 
 287. 
 E. v. Smith, Ey. & M. 295. p. 518. 
 E. v. Smithers, 5 C. & P. 332. p. 545. 
 E. v. Squire, Burns. Just. p. 290. 
 E. v. Stanfield, 11 How. St. Tr. 1402. 
 
 pp. 496, 511, 533. 
 E. v. Stapleton, 1 Cr. & D. 163. p. 
 
 288. 
 E. v. Stewart, 19 How. St. Tr. 156. 
 
 p. 534. 
 E. v. Stone, 1 East, 639. p. 465. 
 E. v. Taylor, 5 Cox C. C. 138. p. 490. 
 E. v. Thurtell, Pliill. Tr. 7. p 513. 
 E. o. Totness, 1 1 Q. B. 80. pp. 28, 29. 
 E. v. Verelst, 3 Camp. 432. p. 50. 
 E. v. Voke, Buss. & Ey. 531. pp. 
 
 490, 508. 
 E. v. "Waters, 1 Den. C. C. 356. p. 
 
 35. 
 E. v. Wellshire, 6 Q. B. Div. 366. p. 
 
 203. 
 E. v. Whiston, 4 Ad. & Ell. 607. p. 
 
 35. 
 E. v. Whitney, 5 Ad. & Ell. 191. p. 
 
 35. 
 E. v. "Wright, 1 C. & P. 116. p. 289. 
 
TABLE OF CASES CITED. 
 
 Ixxiii 
 
 E. Co. v. Eamsay, 22 Wall. 322. p. 
 
 27. 
 Bagland u. Morton, 41 Ala. 344. p. 
 
 320. 
 Bake v. Heaton, 9 Wis. 338. p. 370. 
 Eamsay v. McCauley, 2 Tex. 190. p. 
 
 370. 
 Eamsey v. McOue, 21 Gratt. 349. p. 
 
 881. 
 Eamsbottom v. Buckhurst, 2 M. & S. 
 
 667. p. 35. 
 Randall v. Bowden, 48 Me. 37. p. 54. 
 Eanger v. Cary, 1 Mete 369. p. 78. 
 Eangler v. Morton, 4 Watts, 265. p. 
 
 354. 
 Eankin v. Blackwell, 2 Johns. Oas. 
 
 198. p. 381. 
 Bawls v. Deans, 4 Hawks, 299. p. 55. 
 Eawson v. Adams, 17 Johns. 130. p. 
 
 344. 
 Bay v. Pierce, 84 N. C. 485. p. 308. 
 Bay v. Bowley, 4 Thomp., etc., 43 ; 1 
 
 Hun, 614. p. 41. 
 Eayne v, Terrell, 33 La. Ann. 812. p. 
 
 64. 
 Baynham v. Canton, 3 Pick. 293. p. 
 
 360. 
 Bead v. Robinson, 6 W. & S. 329. p. 
 
 303. 
 Bector v. Bector, 8 HI. 120. p. 138. 
 Rector, etc., of Trinity Church u.Hig- 
 
 gins, 4 Bobt. 1. p. 55. 
 Eedington v. Woods, 45 Cal. 406. p. 
 
 70. 
 Eedmond v. Anderson, 18 Ark. 449. 
 
 p. 29. 
 Eeed v. Goodyear, 17 S. & R. 352. p. 
 
 406. 
 Reed v. Jackson, 1 East, 355. p. 35. 
 Reed v. Kemp, 16 111. 445. p. 381. 
 Reed v. Phillips, 5 111. 43. p. 35. 
 Reed v. Reed, 46 Pa. St. 239. pp. 328, 
 
 334. 
 Eeed v. State, p. 35. 
 Eeed v. Vaughan, 15 Mo. 141. p. 27. 
 Eeedy v. Scott, 23 Wall. 352 . p. 34. 
 Eeese v. Harris. 27 Ala. 301. p. 3G0. 
 Eeese o. Mut. Ben. Ins. Co., 23 N. Y. 
 
 617. p. 359. 
 
 Beeves v. Brymer, 6 Ves. jr. 611. p. 
 
 309. 
 Beeves v. Dougherty, 7 Yerg. 222. p. 
 
 93. 
 Beformed Protestant Dutch Church, 
 
 Att'y Gen. v. 33 Barb. 303. p. 55. 
 Eeid v. Jordan, 56 Pa. 282. p. 57. 
 Beid v. Beid, 11 Tex. 385. p. 55. 
 Bemington v. Levitt, 8 B. Mon. 611. 
 
 p. 108. 
 Eenfo v. Harrison, 10 Mo. 411. p. 
 
 304. 
 Benner v. Bk. of Columbia, 9 Wheat. 
 
 582. pp. 17, 73. 
 Eespublica v. Bob, 4 Dall. 145. p. 
 
 512. 
 Eevel v. State, 26 Ga. 275. p. 537. 
 Eeynolds v. Fleming, 30 Kas. 106. p. 
 
 60. 
 Eeynolds v. Nelson, 41 Miss. 83. p. 
 
 34. 
 Eeynolds v. Pharr, 9 Ala. 560. p. 69. 
 Eeynolds 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. Gale, 12 Minn. 54. p. 163. 
 Eicord v. Williams, 7 Wheat. 109. p. 
 
 414. 
 Eice v. Cunningham, 29 Cal. 492. p. 
 
 40. 
 Bice v. Lumley, 10 Ohio St. 596. p. 
 
 200. 
 Eichards v. Ayers, 1 W. & S. 485. p. 
 
 306. 
 Eichards v. Elwell, 12 Wright, 61. p. 
 
 407. 
 Eichards v. Kountze, 4 Neb. 209. p. 
 
 93. 
 Eichards v. Eichards, 15 East, 294. 
 
 p. 197. 
 Bichardson v. Smith,, 1 Allen, 541. p. 
 
 57. 
 Bichardson's Estate, 13 Phila. 241. p. 
 
 305. 
 Eichmond v. Aiken, 25 Vt. 524. p. 
 
 569. 
 
lxxiv 
 
 TABLE OF CASES CITED. 
 
 Eicketson v. Richardson, 26 Cal. 149. 
 
 p. 33. 
 Ridgeley v. Johnson, 11 Barb. 540. p. 
 
 396. 
 Eidgway, Re, 4 Redf. 226. p. 242. 
 Eiembauer's Case, 3 Leg. Obs. 242. 
 
 pp. 505, 516. 
 Eiggs v. Penn. E. Co., 16 Fed. Eep. 
 
 804. p. 148. 
 Riggs v. State, 30 Miss. 636. pp. 266, 
 
 469. 
 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. 
 Eipley v. BabcocK, 13 Wis. 425. p. 
 
 179. 
 Eisher v. The Frolic, 1 Woods, 92. p. 
 
 353. 
 Eising Sun, The, 2 Eob. Adm. 104. 
 
 p. 151. 
 Eist v. Hobson, 1 Sim. & Stu. 543. 
 
 p. 67. 
 Bitter v. Schenck, 101 111. 387. pp. 
 
 35, 347. 
 Eives v. Kumler, 27 111. 291. p. 54. 
 Rixford v. Miller, 49 Vt. 319. p. 172. 
 Robbins v. Townsend, 20 Pick. 345. 
 
 p. 850. 
 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. 
 Roberts v. Pillow, 1 Hempst. 634. p. 
 
 82. 
 Roberts v. Swearingen, 8 Neb. 363. 
 
 p. 419. 
 Robertsi). Wilcoxson, 36 Ark. 364. p. 
 
 68. 
 Eobeson v. Schuylkill Nav. Co., 3 
 
 Grant's Cas. 190. p. 355. 
 Eobinoe v. Doe, 6 Black. 85. p. 
 
 420. 
 
 Eobinson v. Allijon, 36 Ala. 525. p, 
 
 344. 
 Eobinson v. Cushman, 2 Denio, 149, 
 
 p. 75. 
 Eobinson 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 0. C. 
 
 187. p. 241. 
 Rochell v. Holmes, 2 Bay, 487. p. 
 
 403. 
 Rockwell v. Taylor, 41 Conn. 55 p. 
 
 344, 
 Roden u.Ryde, 4 Q. B. 626. pp. 253, 
 
 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. 
 
 315. 
 Rogers v. Hatch, 8 Nev. 35. p. 370. 
 Rogers v. Morton, 12 Wend. 484. p. 
 
 77. 
 Rogers v. Park, 4 Humph. 480. p. 
 
 50, 
 Rogers v. Zook, 86 Ind. 237. p. 358. 
 EonkendorfFj). Taylor, 4 Pet. 349. p. 
 
 49. 
 Rood v. N. Y., etc., R. Co., 18 Barb. 
 
 80. p. 69. 
 Rooker v. Perkins, 1 Wis. 79. p. 
 
 403. 
 Rose v. Clark, 8 Page, 573. pp. 93, 435. 
 Rosenthal v. Mayhugh, 33 Ohio St. 
 
 155. p. 200. 
 Rosenthal v. Renick, 44 111. 202. pp. 
 
 34, 54. 
 Rosenweig v. People, 63 Barb. 634. 
 
 p. 483. 
 Ross v. Clare, 3 Dana, 189. p. 405. 
 Ross v. Darby, 4 Munf. 428. p. 322. 
 Ross v. Dunham, 35 Ala. 434. pp. 
 
 77, 79. 
 Ross v. Ellsworth, 49 Me. 416. p. 344, 
 Ross v. ilizner, 3 Blackf. 3C2. p. 35. 
 Ross v. McJunkin, 14 S. & E. 364. 
 
 p. 322. 
 
TABLE OP CASES CITED. 
 
 lxXT 
 
 Eosser v. Bunn, 66 Ala. 89. p. 405. 
 Eouten v. Bostwick, 59 Ala. 360. p. 
 
 68. 
 Eoutledge v. Carrutliers, Nicholas 
 
 Adult. Bast. 161. p. 109. 
 Eowan v. Lamb, 4 G. Greene, 468, 
 
 pp. 30, 54. 
 Eowe v. Hasland, 1 W. Bl. 404. p 
 
 201. 
 Eowland v. Windley, 86 N. C. 36 
 
 p. 336. 
 Eubey v. Culbertson, 35 Iowa, 264 
 
 p. 347. 
 Eugely v. Gill, 15 La. Ann. 599. p 
 
 20. 
 Euggles v. Bucknor, 1 Paine, 358. p 
 
 55. 
 Bugles v. Lawson, 13 Johns. 285. p. 
 
 303. 
 Euloif v. People, 40 N. T. 213; 5 
 
 Luns. 261. pp. 197, 552. 
 Bung v. Shonenberger, 2 Watts, 23 ; 
 
 26 Am. Dec. 95. p. 415. 
 Eunnion v. Crane, 4 Blackf. 456. p. 
 
 381. 
 Bush ii. Megee, 36 Ind. 69. p. 179. 
 Eussell v. Baptist Theol. Union, 73 
 
 111. 337. p. 93. 
 Eussell v. Beebe, Hempst. 704. p. 55. 
 Eussell v. Hallett, 23 Kas. 276. p. 243. 
 Eussell v. Marks, 3 Mete. (Ky.) 37. 
 
 p. 87. 
 Bust v. Baker, 8 Sim. 443. p. 200. 
 Bustard v. Gates, 4 Dana. 430. p. 427. 
 Byan v. Sams, 12 Q. B. 460. p. 175. 
 Byan, Ex parte, 44 Cal. 655. p. 4G0. 
 Eyder 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. 
 
 68. 
 Sadler v. Kennedy, 11 W. Va. 187. 
 
 pp. 322, 323. 
 
 Salter v. Applegate, 23 N. J. (L.) 
 
 115. p. 47. 
 Saltern v. Melhursh, Amb. 348. p. 
 
 152. 
 Sandilands, In re, L. E. 6 C. P. 411. 
 
 p. 83. 
 Sanfordw. Sandford, 28 Conn. 6. p. 
 
 34. 
 Sansam v. Eamsay, 2 Vern. 561. p. 
 
 145. 
 Satterthwaite v. Powell, 1 Curt. 705. 
 
 p. 242. 
 Saum ». Jones Co., 1 G. Greene, 165. 
 
 p. 36. 
 Saunders v. Gilmer, 8 Tex. 295. p. 
 
 55. 
 Saunders v. Spingstein, 4 "Wend. 429. 
 
 p. 164. 
 Savage v. O'Neil, 42 Barb. 374. p. 
 
 366. 
 Savage v. O'Neil, 44 N. Y. 298. p. 
 
 366. 
 Savier v. Chipman, 1 Mich. 116. pp. 
 
 94, 436. 
 Saxon ». Whitaker, 30 Ala. 237. p. 
 
 179. 
 Sayle3 v. Olmstead, 66 Barb. 590. p. 
 
 351. 
 Sayre v. Eeynolds, 5. N. J. 1. 737. 
 
 p. 394. 
 Sayres v. Com., 88 Pa. St. 301. p. 
 
 459. 
 Scales v. Key, 11 Ad. & Ell. 819. p. 
 
 167. 
 Scammon v. Scammon, 28 N. H. 419. 
 
 p. 55. 
 Scheel v. Eidman, 77 111. 304. p. 
 
 197. 
 Schemmelpeuich v. Bayard, 4 Pet. 
 
 264. p. 354. 
 Schermerhorn v. Talman, 14 N. Y. 
 
 93. p. 56. 
 Schnellu. Toomer, 56 Ga. 168. p. 
 
 135. 
 Scholes v. Hitton, 10 M. & W. 15. 
 
 pp. 102, 276. 
 Scholey v. Walsky, Peake, 25. p. 348. 
 Salandern. Lockwood, 66 Ind. 285. I Schonemanu. Fegley, 14 Pa. St. 376. 
 
 p. 35. 
 
 p. 184. 
 
lxxvi 
 
 TABLE OF CASES CITED. 
 
 Schulter v. Merchants' Mut. Ins. Co 
 
 62 Mo. 239. p. 439. 
 Schurman a. Marley, 29 Ind. 459, 
 
 p. 358. 
 Scott v. Coxe, 20 Ala. 294. p. 182 
 Scott v. White, 71 111. 287. p. 35. 
 Scott «. Williamson, 24 Me. 343. p. 
 
 77. 
 Scott, In Be, 1 Eedf. (N. T.) — . p, 
 
 74. 
 Scovill v. Baldwin, 27 Conn. 817. pp. 
 
 23, 135. 
 Scruggs v. Bobb, 33 Ala. 481. p. 345 
 Scutton v, Patullo, L. B. 19 Eq. 375 
 
 p. 241. 
 Seaborn v. Henry, 30 Ark. 469. p. 
 
 358. 
 Searle u. Barrington, Str. 813. ■ p 
 
 314. 
 Sears v. Dixon, 33 Cal. 328. p. 35, 
 Seeds v. Kahler, 76 Pa. St. 263. p, 
 
 60. 
 Seechrist v. Baskin, 7 W. & S. 403 
 
 42 Am. Dec. 424. p. 34. 
 Seegie v. Thomas, 3 Blatchf. 111. p 
 
 34. 
 Seibright v. State, 2 W. Va. 591. p 
 
 465. 
 Selleck v. (Booth, 1 Law. & Call. C 
 
 C. 117. p. 241. 
 Sellicki;. Starr, 5 Vt. 255. p. 403. 
 Selma & E. Co. v. Lacy, 43 Ga. 461 
 
 p. 358. 
 Selwyn, Ee, 8 Hagg. Ecc. 748. p, 
 
 241. 
 Senser u. Bower, 1 Penn. 450. p 
 
 108. 
 Sever v. Eussell, 4 Cush. 513 ; 50 Am, 
 
 Dec. 811. p. 34. 
 Sewell v. Evans, 4 Q. B. 626. p, 
 
 253. 
 Sewell v. Smith, 54 Ga. 507. p. 
 
 304. 
 Seymour v. Sturgess, 26 N. Y. 135, 
 
 p. 370. 
 Sharp v. Johnson, 22 Ark. 79. pp 
 
 448, 583. 
 Sharp v. Sharp, 35 Ala. 574. p, 
 
 859. 
 
 Shaefer v. Gates, 2 B. Mon. 453 
 
 Am. Dec. 164. p. 34. 
 Shaffner v. Com., 72 Pa. St. 60. p, 
 
 483. 
 Shallcross v. Palmer, 15 Jur. 
 
 p. 387. 
 Shands v. Howell, 28 Ga. 222. p, 
 
 35. 
 Shattuck v. People, 5 HI. 478. p, 
 
 35. 
 Shearer v. State, 7 Blackf. 99. p, 
 
 465. 
 Sheehan v. Davis, 17 Ohio St. 571 
 
 p. 36. 
 Sheils <;. West, 17 Cal. 324. p, 
 
 143. 
 Sheldon v. Clark, 1 Johns, 513. p, 
 
 465. 
 Sheldon v. Ferris, 45 Barb. 128. p, 
 
 235. 
 Sheldon v. Wright, 7 Barb. 39. 
 
 43. 
 Shelbyville Trustees v. Town of She! 
 
 byville, 1 Mete. (Ky.) 54. p. 47. 
 Shepherd v. Com., 6 Binney, 283 p 
 
 115. 
 Sherrill o. Hopkins, 1 Cow. 103. p, 
 
 6. 
 Shields v. Pringle, 2 Bibb, 387. pp, 
 
 333, 336, 342. 
 Shinkle ». First Nat.. Bk., 22 Ohio St, 
 
 517. p. 344. 
 Shorey v. Hussey, 32 Me. 579. p. 
 
 54. 
 Shortwell v. Murray, 1 Johns. Ch, 
 
 512. p. 6. 
 Shouse v. Lawrence, 51 Ala. 560. p, 
 
 34. 
 Shove v. Wiley, 18 Pick. 558. pp. 
 
 185, 186. 
 Shropshire o. Glasscock, 4 Mo. 636, 
 
 p. 369. 
 Shis v. Badger, 6 N. H. 393. p.. 54. 
 Sibbering v. Earl of Barcarras, 3 De 
 
 G. & Sm. 735. p. 72. 
 Sibley v. Fisher, 7 Ad. & El. 444. p. 
 888 
 Sichel v. Lambert, 15 C. B. {v. s.), 
 
 782. pp. 94, 106, 435. 
 
TABLE OF CASES CITED. 
 
 lxxvii 
 
 Sidney e. Sidney, 8 P. Wms. 270. 
 
 pp. 102, 117, 276. 
 Sidwell v. "Worthington, 8 Dana, 74 
 
 p. 34. 
 Simmons v. Eudall, 1 Sim. (n. s.) 
 
 136. p. 387. 
 Simpson v. Davis, 119 Mass. 369. p. 
 
 899. 
 Simpson v. Dismore, 9 M. & "W. 47. 
 
 p. 250. 
 Simpson v. Stackhouse, 9 Pa. St. 186 ; 
 
 49 Am. Dec. 554. p. 390. 
 Simpson i>. State, 4 Humph. 456. p. 
 
 518. 
 •Sim v. Aughtery, 4 Strob. Eq. 103. 
 
 pp. 421, 424. 
 Sims v. State, 68 6a. 486. p. 35. 
 Simson a. Eckstein, 22 Cal. 580. p. 
 
 419. 
 Sinclair v. Baggaley, 4 M. & W. 312. 
 
 pp. 89, 90. 
 Sistermans «. Field, 9 Gray, 332. p. 
 
 77. 
 Slade v. Minor, 2 Cranch C. C. 189. 
 
 36. 
 Slater v. Henry, 5 Jones (N. C), 66- 
 
 p. 443. 
 Sleeper v. Van Middlesworth, 4 De- 
 
 nio,431. p. 181. 
 Slicer v. Bk. of Pittsburg, 16 How. 
 
 571. p. 43. 
 Sloan v. Whitaker, 58 Ga. 319. p. 
 
 304. 
 Slocum v. People, 90 111. 281. pp. 
 
 451, 587. 
 Smiley v. Fries, 104 111. 416. p. 84. 
 Smith «. Battens, 1 Mqo. & E. 341. 
 
 p. 89. 
 Smith v. Brame, 16 Q. B. 244. p. 
 
 77. 
 Smith v. Clark, 12 Iowa 32. p. 185. 
 Smith v. Com., 1 Duv. (Ky.) 224. p. 
 
 459. 
 Smith v. Croom, 7 Fla. 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 ii. Henderson, 9 M. & W. 818. 
 
 p. 251. 
 Smith v. Hill, 22 Barb. 65S. p. 
 
 55. 
 Smith a. Jordan, 13 Min. 264. p. 
 
 83. 
 Smith v. Keating, 6 C. B. 136. p. 35. 
 Smith v. Knowlton, 11 N. H. 196. 
 
 pp. 200, 231. 
 Smith v. McGowan, 8 Barb. 406. p. 
 
 393. 
 Smith v. N. Y. Cent. B. 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 u. Smith, 49 Ala. 156. 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 u. 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. IT. S., 2 "Wall. 232. p. 381. 
 Smith v. Williamson, ' 11 N. J. L. 
 
 313. p. 40. 
 Smith v. "Whitaker, 23 111. 367. p. 
 
 372. 
 Smith v. "Whiting, 12 Mass. 6. pp. 
 
 17, 73. 
 Smith, Ee, 31 L. J. (P. & M.), 182. 
 
 p. 238. 
 Smithpeter v. Ison, 4Eich. Law, 203. 
 
 p. 427. 
 Smoot v. Baldwin, 1 Mart. (n. s.) 528. 
 
 p. 370. 
 Smyth v. Jeffries, 5 Price, 258. p. 
 
 465. 
 Smyth, Ee, 28 L. J. (P. & M.) 1. p. 
 
 229. 
 
lsxviii 
 
 TABLE OF CASES CITED. 
 
 Snethen v. Memphis Ins. Co., 3 La. 
 Ann. 474; 48 Am. Dec. 462. 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. Biley, 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. 61. 
 Somervail v. Gillies, 31 Wis. 152. 
 
 pp. 347, 351. 
 Somerville v. State, 6 Tex. App. 433. 
 
 p. 493. 
 South, etc., E. Co. v. Morrow, 65 Ala. 
 
 197. p. 58. 
 Sparbawk v. Bullard, 1 Mete. 95. p. 
 
 403. 
 Sparks v. Bawls, 17 Ala. 211. p. 
 
 404. 
 Spawn v. Crummerford, 20 Tex. 216. 
 
 p. 370. 
 Spear v. Carter, 1 Mich. 19 ; 48 Am. 
 
 Dee. 688. 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. Boper, 13 Ired. (L.) 333. 
 
 p. 201. 
 Sperry u. Spaulding, 45 Cal. 344. 
 
 p. 77. 
 Spiers v. Parker, 1 T. E. 141. pp. 
 
 35, 4G5. 
 Spieres v. Parker, 1 T. E. 144. p. 
 
 465. 
 Spooner's, Mrs., Case, 2 Chand. Cr. 
 
 Tr. 14. pp. 512, 534. 
 Sprague u. Duel, 1 Clarke (N. Y.) 90. 
 
 p. 179. 
 Sprague v. Litherberry, 4 McLean, 
 412. pp. 34, 36, 302. 
 
 Sprigg v. Moale, 28 Md. 506. pp. 
 
 194, 197. 
 Spring Garden Mut. Ins. Co. v. Ev- 
 ans, 9 Md. 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., B. Co. v. Murphy, 38 ' 
 
 Ark. 456. p. 34. 
 St. Louis, etc., E. Co. v. "Wheelis, 
 
 72 111.538. p. 35. 
 Stacey v. Graham, 3 Duer, 444. p. 
 
 420. 
 Stahl v. Berger, 10 S. & E 171. p. 
 
 386. 
 Stall v. Fulton, 30 N. J. (L.) 430. 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 o. 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 o. Arnold, 13 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 «. Baber, 74 Mo. 292. p. 459. 
 State v. Bartlett, 43 N. H. 224. p. 
 
 459. 
 State v. Bartlett, 55 Me. 200. p. 552. 
 State v. Beackner, 8 Blackf. 246. p. 
 
 85. 
 State v. Bell, 29 Iowa, 316. p. 274, 
 
TABLE OF CASES CITED. 
 
 Ixxix 
 
 State v. Bennett, 3 Brev. 514. p. 518. 
 State v. Bertrand, 3 Oregon, 61. pp. 
 
 266, 469. 
 State v. Boice, 1 Houst. Cr. Cas. 355. 
 
 p. 458. 
 State v. Boswell, 63 Ala. 307. p. 459. 
 State v. Brewster, 7 Vt. 122. p. 518. 
 State v. Brown, 64 Mo. 367. pp.449, 
 
 585. 
 State v. Brown. 75 Mo. 317. pp. 36, 
 
 518. 
 State v. Brown, 12 Minn. 538. p. 36. 
 State v. Brown, 1 Houst. Cr. Cas. 539. 
 
 p. 179. 
 State ii. Bruin, 34 Mo. 537. pp. 479, 
 
 518. 
 State v. Bunker, 59 Me. 366. p. 405. 
 State ii. Burlingame, 15 Maine, 106. 
 
 p. 299. 
 State v. Butterfleld, 75 Mo. 297. p. 
 
 518. 
 State v. Cameron, 40 Vt. 555. p. 552. 
 State v. Carter, 6 lnd. 37. p. 54. 
 State v. Cassldy, 12 Kas. 559. p. 618. 
 State v. Cicely, 13 S. &M. 206. pp. 
 
 530, 533. 
 State v, Cleares, 59 Me. 300. pp. 546, 
 
 552. 
 State v. Cobb, 64 Ala. 157. p. 371. 
 State v. Coleman, 27 La. Ann. 691. p. 
 
 274. 
 State v. Collins, 3 Dev. 117. p. 551. 
 State u. Cowell, 12 Nev. 337. p. 487. 
 State v. Crank, 75 Mo. 406. p. 518. 
 State v. Crawford, 11 Kan. 32. p. 
 
 459. 
 State v. Creson, 38 Mo. 372. p. 479. 
 State v. Cress, 10 Iowa, 101. p. 54. 
 State ii, Crockett, 82 N. C. 600. p. 
 
 545. 
 State v. Crowell, 25 Me. 171. p. 465. 
 State v. Crowley, 13 Ala. 172. p. 492. 
 State v. Cunningham, 28 Conn. 195. 
 
 p. 564. 
 State v. Danby, 1 Houst. (Del.) Cr. 
 
 Cas. 175. p. 458. 
 State v. Draper, 1 Houst. Cr. Caa.<531. 
 
 p. 458. 
 State v. Edwards, 60 Mo. 490. p. 465. 
 
 State d. Edwards, 13 S. C. 30. p. 545. 
 State v. Erb, 74 Mo. 199. p. 459. 
 State v. Evans, 65 Mo. 574. p. 473. 
 State v. Evans, 5 Jones, 250. p. 461. 
 State v. Parish, 23 Miss. 483. pp. 29, 
 
 84. 
 State ii. Felter, 32 la. 49. p. 459. 
 State ii. Floyd, 15 Mo. 354. p. 479. 
 State ii. Flye, 26 Me. 312. p. 445. 
 State v. Foster, 61 Mo. 549. pp. 271, 
 
 473. 
 State ii. Poster, 23 N. H. 348. p. 20. 
 State v. Fugate, 27 Mo. 535. p. 433. 
 State ii. G-assert, 65 Mo. 352. p. 473. 
 State ii. Gibson, 21 Ark. 140. pp. 34, 
 
 37. 
 State ii. Gillis, 4 Dev. (L.) 607. p. 
 
 531. 
 States. Gain, 9 Humph. (Tenn.) 175. 
 
 p. 439. 
 State v. Graves, 72 N. C. 382. p. 479, 
 
 518. 
 State ii. Gray, 37 Mo. 463. pp. 479. 
 
 518. 
 State ». Green, 35 Conn. 203. p. 460. 
 State ii. Hamilton, 55 Mo. 523. p. 
 
 548. 
 State v. Harden, 11 S. 0. 360. p. 55. 
 State v. Hatcher, 11 Rich. (L.) 525. 
 
 p. 55. 
 State ii. Heaton, 77 N. C. 504. p. 265, 
 
 468. 
 State v. Herman, 13 Ired. (L.) 502. 
 
 p. 108. 
 State n. Hessenkamp, 17 Iowa, 25. 
 
 p. 262. 
 State v. Hill, 2 Speers, 150. p. 47. 
 State ii. Hinchman, 27 Pa. St. 479. 
 
 p. 43. 
 State ii. Hodge, 50 N. H. 510. p. 518. 
 State ii. Holme, 54 Mo. 153. pp. 266, 
 
 469. 
 State ii. Howard, 82 N. C. 627. p. 
 
 606. 
 State ii. Huting, 21 Mo. 464. p. 459. 
 State ti. Hurley, 54 Me. 562. p. 564. 
 State ». Johnson, 40 Conn. 136. p. 
 
 179. 
 State u. Jones, 50 N. H. 369. p. 459. 
 
lxxx 
 
 TABLE OP CASES CITED. 
 
 State ». Kean, 10 N. H. 347. p. 106. 
 State v. Kempf, 26 Mo. 429. p. 439. 
 State v. Kelsoo, 76 Mo. 506. p. 252. 
 State v. Kinman, 7 Bich. (L.) 497. 
 
 p. 525. 
 State v. Klinger, 43 Mo. 127. p. 459. 
 State v. Knapp, 45 N. H. 148. p. 543. 
 State v. Lamon, 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 j). Lawson, 14 Ark. 114. p. 56. 
 State v. Lewis, 22 S. 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. Mitchell, 64 Mo. 191. pp 
 
 271, 473. 
 State v. Moore, 11 Ired. (L.) 160. p, 
 
 201. 
 
 State v. Moore, 61 Mo. 279. p. 248. 
 State v. Morris, 84 N. C. 756. p. 506, 
 State v. Morrison, 3 Nev. 299. pp. 
 
 461, 465. 
 State v. Marier, 25 Conn. 40. p. 433 
 State v. Mulhall, 72 Mo. 522. p. 366. 
 State v. McBride, 19 Mo. 239. p. 439, 
 State v. Neagle, 65 Me. 468. p. 487, 
 State v. Nichols, 88 Ark. 550. p. 34. 
 State v. O'lSTeal, 7 Ired. (L.) 251. p. 
 
 651. 
 State v. Patterson, 2 Ired. (L.) 356, 
 
 p. 176. 
 State v. Patza, 3 La. Ann. 512. p, 
 
 489. 
 State w, 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 o. 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. Eeaton, 16 N. H. 174. p. 
 
 483. 
 State v. Eedemier, 71 Mo. 173. p. 
 
 459. 
 State v. Peed, 62 Mo. 130. pp. 512, 
 
 645. 
 State v. Bobbins, 65 Mo. 443. p. 479, 
 State v. Boherts, 52 N. H. 492. p. 
 State v. Eobinson, Burr. Ev. 462. pp, 
 
 533, 534. 
 State v. Eobinson, Burr. Cir. Ev. 2; 
 
 p. 496. 
 State v. Eomaine, 58 Iowa, 46. p. 
 
 108. 
 State o. Sam, 1 Winst. 300. p. 285, 
 State v. Sewell, 3 Jones (L.) 245. p, 
 
 179. 
 State v. Shaw, 4 Jones (L.), 446. p, 
 
 625. 
 
 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. 267. p. 459, 
 State u. 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. 31 
 State v. Steinmeyer, 64 Ind. 87. p, 
 
 35. 
 State v. Thomas, 1 Houst. Cr. Cas, 
 
 511. p. 458. 
 State v. Tibbets, 35 Me. 81. pp.445, 
 
 478. 
 
TABLE OF CASES CITED. 
 
 Ixxxi 
 
 State v. Trivals, 32 La. Ann. 1086 ; 
 
 86 Am. Sep. 293. p. 274. 
 State v. Turner, 65 N. C. 593. p. 
 
 618. 
 State v. Turner, Wright (0.), 20. p. 
 
 473. 
 State v. Twitty, 2 Hawks, 441. p. 
 
 370. 
 State v. Upham, 88 Me. 361. p. 551. 
 State v. Vann, 82 N. C. 631. p. 179. 
 State v. Vittum, 9 N. H.t 519 ; pp. 
 
 258, 677.' 
 State «. 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. 
 
 649. 
 State v. Welch, 73 Mo. 284. p. 454. 
 State v. Wells, 48 Iowa, 671. pp. 
 
 451, 587. 
 State v. West, 1 Houst. Cr. Cas. 382. 
 
 p. 496. 
 State v. Weston, 9 Conn. 627. p. 
 
 618. 
 State v. Whittier, 21 Me. 341. p. 
 
 465. 
 State v. Wikoff, 15 Mo. 174. p. 518. 
 State v. Williams, 54 Mo. 170. pp. 
 
 479, 618, 538. 
 State v. Williams, 9 Ired. (L.) 140. 
 
 p. 518. 
 State u. Williams, 65 N. C. 365. p. 
 
 293. 
 State v. Williamson, 57 Mo. 192. p. 
 
 40. 
 State v. Willner, 40 Wis. 304. p. 179. 
 State v. Wilson, 10 Ired. (L.) 131. 
 
 p. 108. 
 State ». Wolff, 15 Mo. 168. p. 479. 
 State v. Woodly, 2 Jones, 276. p. 
 
 461. 
 State v. Worthingham, 23 Minn. 528. 
 
 p. 108. 
 State' Auditor v. Jackson County, 65 
 
 Ala. 142 (1880). p. 63. 
 State Bk. v. Sewell, 18 Ala. 616. p. 
 173. 
 
 State Nat. Bk. v. Seofleld, 9 Neb. 499. 
 
 p. 36. 
 Stearns v. Stearns, 37 Vt. 678. p. 37. 
 Stebbing v. Spicer, 8 C. B. 827. p. 
 
 258. 
 Stebbins v. Leowolf, 1 Cush. 137. 
 
 pp. 101, 276. 
 Stegall v. Stegall, 2 Brock. 253. pp. 
 
 108, 115, 118. 
 Stevens «. Bruce, 21 Pick. 193. p. 78. 
 Stevens v. Lynch, 12 East, 38. p. 6. 
 Stevens v. Martin, 18 Pa. St. 101. p. 
 
 381. 
 Stevens v. Moss, 2 Cowp. 694. p. 118_ 
 Stevens v. McNamara, 36 Me. 176. 
 
 p. 200. 
 Stevens v. People, 31 Ind. 485. p. 
 
 459. 
 Stevens v. Tafft, 3 Gray, 487. p. 82. 
 Stevens v. West, 6 Jones (L.), 50. p, 
 
 259. 
 Stevens Hospital v. Dyas, 15 Ir. Eq- 
 
 (tr. s.)405. p. 382. 
 Stevenson v. Hoy, 43 Pa. St. 191. p- 
 
 60. 
 Stevenson ». Martin, 11 Bush, 458. 
 
 p. 304. 
 Stewart v. 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 Eecl87. 
 
 p. 541. 
 Stickworth, Ee, 7 Nev. 223. p. 36. 
 Stinckfield v. Emerson, 52 Me. 465. 
 
 pp. 197, 213. 
 Stinde v. Goodrich, 3 Eedf. 87. p. 
 
 242. 
 Stockley v. Stockley, 1 V. & B. 23. 
 
 p. 6. 
 Stockton e. 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. 147. p. 
 
 176. 
 Stouvenel v. Stephens, 2 Daly, 323. 
 
 p. 222. 
 
Ixxxii 
 
 Stodder v. Powell, 1 Stow. 137 
 
 427. 
 Stokes u. Macken, 62 Barb. 149. p. 
 
 358. 
 Stokes v. State, 58 Miss. 677. p. 518. 
 Stone v. Geyser Min. Co., 52 Cal. 
 
 517. p. 563. 
 Stone v. State, 4 Hemp. 27. p. 486. 
 Stoner v. Ellis, 6 Ind. 159. pp. 394, 
 
 395. 
 Story v. State, 16 Fla. 564. p. 35. 
 Storrs v. Baker, 6 Johns. Ch. 166. p. 
 
 8. 
 Stout v. Levan, 3 Pa. St. 236. p. 333. 
 Strang, Ex parte, 21 Ohio St. 610. p. 
 
 47. 
 Strangwayes' Case, 5 Leg. Obs. 90. 
 
 pp. 49U, 510. 
 Strickler „. Todd, 10 S. & B. 63 ; 13 
 
 Am. Dec. 649. p. 404. 
 Strimpler v. Roberts, 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. 
 Strother 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 „. Cook, 15 Kas. 162. pp 
 
 34, 39. 
 Supervisors v. People, 25 HI. 183. p 
 
 58. 
 Supervisors of Haughton Co. v. Bees, 
 
 34 Mich. 481. p. 54. 
 Supervisors of Livingston u. White, 
 
 20 Barb. 72. p. 55. 
 Sutphen v. Cushman, 35 111. 187. pp. 
 
 102, 276, 347, 556. 
 
 TABLE OF CASES CITED 
 P 
 
 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. 
 Swainscott Mac. Co. v. "Walker, 22 N- 
 
 H. 457. p. 182. 
 Sweeting v. Powler, 1 Stark. 106. p. 
 
 258. 
 Swift v. Swift, 46 Cal. 267. p. 68. 
 Sylvester v. State, 71 Ala. 25. p. 537. 
 Symington v. McLin, 1 Dev. & B. 
 
 291. p. 130. 
 
 T. 
 
 Taantje's Case, Phil. Circ. Ev. xxxviii. 
 
 p. 507. 
 Tabb v. Collier, 68 Ga. 641, p. 35. 
 Table Mt. Min. Co. v. Waller's De- 
 feat Min. Co., 4 Neb. 220. p. 177 
 Taggart 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 o. Reynolds, 1 Ark. 99. p. 50 
 Tarn v. Shaw, 10 Ind. 469. p. 35. 
 Tanner v. Hughes, 53 Pa. St 289. p. 
 
 560. 
 Tatman v. Strader, 23 111. 493. p, 
 
 369. 
 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. T. Leg, 
 
 Obs. 209. p. 386 
 Taylor i>. Diplock, 1 Phill. 261. p. 
 
 241. 
 Taylor v. Dougherty, 1 W. & S. 327. 
 
 p. 407. 
 
TABLE OF CASES CITED. 
 
 lxxxiii 
 
 Taylor v. Dugger, 65 Ala. 434. p. 
 
 308. 
 Taylor v. Mosely, 6 0. & P. 273. p. 
 
 387. 
 Taylor v. Watkins, 26 Tex. 688. p. 
 
 403. 
 Tecumseh. Town Site Case, 3 Neb. 
 
 284. p. 54. 
 Tedder v. Stiles, 16 Ga. 2. p. 140. 
 Templeton v. Morgan, 16 La. Ann. 
 
 438. p. 64. 
 Templeton v. People, 27 Mich. 601. 
 
 pp. 439, 498. 
 Territt v. Woodruff, 19 Vt. 182. p. 
 
 370. 
 Terry v. Bleight, 3 T. B. Mon. 270; 
 
 16 Am. Dec. 101 (1826). p. 63. 
 Tharp v. Com., 3 Mete. (Ky.) 411. p. 
 
 34. 
 Thatcher v. Dinsmore, 5 Mass. 299. 
 
 p. 354. 
 Thatcher v. Powell, 6 Wheat. 127. 
 
 p. 27. 
 Thayer v. Barney, 12 Min. 613. p. 
 
 83. 
 Thayer v. Marsh, 11 Hun, 601. p. 
 
 85. 
 Thayer v. Middlesex Mutual Fire Ins. 
 
 Co., 10 Pick. 329. p. 130. 
 Thayer v. Thayer, 101 Mass. 113. p. 
 
 492. 
 Todemeier v. Aspinwall, 43 111. 401. 
 
 p. 64. 
 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. H. 510. p. 
 
 403. 
 Thompson v. Davitte, 59 Ga. 472. p. 
 
 120. 
 
 Thompson v. Kenyon, 100 Mass. 108. 
 
 p. 664. 
 Thompson v. Ketcham, 8 Johns. 190. 
 
 p. 368. 
 Thompson o. 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. H. 27. 
 
 p. 55. 
 Thorpe v. Corwin, 20 N. J. (L.) 311. 
 
 p. 327. 
 Throgmorton v. Walton, 2 Rolle, 461. 
 
 p. 196. 
 Thrower v. Wood, 60 Ga. 459. p. 
 
 304. 
 Thursby v. Myers, 57 Ga. 155. p. 59. 
 Thurston v. Percival, 1 Pick. 415. p. 
 
 359. 
 Tibballs o. Jacobs, 31 Conn. 428. p. 
 
 303. 
 Tibbs v. Allen, 27 111. 119. p. 34. 
 Tilghman v. Fisher, 9 Watts, 441. 
 
 p. 308. 
 Tillie, The, 7 Ben. 382. p. 143. 
 Tillou u. 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, Ee, 30 Beav. 151. p. 
 
 193. 
 Tinkham v. Arnold, 3 Me. 120. p. 
 
 403. 
 
lxxxiv 
 
 TABLE OF CASES CITED. 
 
 Tisdale v. Conn. Mut. Ins. Co., 26 
 
 Iowa, 170; 28 Id. 12. p. 233. 
 Tisdale v. Maxwell, 58 Ala. 40. p. 
 
 353. 
 Titlow v. Titlow, 54 Pa. St. 216. p. 
 
 179. 
 Titus v. Kimbro, 8 Tex. 210. pp. 56, 
 /)' 464. 
 
 • Tobin v. Shaw, 45 Me. 344. p. 159. 
 Toda v. Myers, 40 Cal. 355. pp. 94, 
 
 436. 
 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 Bust, 176. p. 
 
 31. 
 Tompkins v. Mann, 6 111. (App.) 171. 
 
 p. 35. 
 Toplis 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. Tiekriell, 3 B. & Aid. 31. 
 
 p. 303. 
 Trabue v. Sayre, 1 Bush, 131. p. 
 
 186. 
 Trask v. White, 8 Brown Ch. 291. p. 
 
 316. 
 Treat v. Treat, 35 Conn. 200. p. 304. 
 Trego v. Lowrig, 8 Neb. 238. p. 68. 
 Trenoulet v. Cenas, 6 Mart. (n. s.) 
 
 541 ; 17 Am. Deo. 195. p. 346. 
 Trenton Banking Co. ». Woodruff, 2 
 
 N. 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 ■„. Hatch, 3 Abb. Pr. 27. p. 
 
 372. 
 Trott v. Irish, 1 Allen, 49. pp. 101, 
 
 276. 
 Trotter v. Harris, 2 Toung & 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, 462. 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 o. 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 Bob. 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. 
 
 Ulrica v. McCabe, 1 Hilt. 251. p. 
 
 103. 
 Underwood k. Hossack, 38 Bl. 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. 
 
 393. p. 347. 
 United States v. Bo.wen, 4 Cranch 
 
 C. O. 604. p. 274. 
 United States a . Carberry, 2 Cranch 
 
 O. C. 358. p. 55. 
 United States v. De Coursey, 1 Pin- 
 
 ney (Wis.), 508. p. 163. 
 
TABLE OF CASES CITED. 
 
 Ixxxv 
 
 United States v. Douglass, 2 Blatohf. 
 
 (U. S.) 207. p. 447. 
 United States v. Earhart, 4 Sawy. 245. 
 
 p. 65. 
 United States v. Galacar, 1 Sprague, 
 
 545. p. 461. 
 United States v. Hayward, 2 Gall. 
 
 (U. S.) 485. p. 465. 
 United States v. Jennegan, 4 Cranch 
 
 C. C. 118. p. 360. 
 United States v, Lawrence, 4 Cranch 
 
 C. C. 514. p. 280. 
 United States a. McGlue, 1 Curt. 1. 
 
 p. 280. 
 United States v. McLean, 9 Pet. 
 
 (U. S.) 682. p. 4\0. 
 United States v. Noelke, 17 Blatchf. 
 
 554. p. 69. 
 United States v. Bandall, Deady, 543. 
 
 p. 543. 
 United States v. Rathbone, 2 Paine, 
 
 578. p. 567. 
 United States v. Ross, 92 U. S. 283. 
 
 pp. 569, 572. 
 United States v. White, 5 Cranch 
 
 C. C. 73. p. 36. 
 University of Vermont v. Beynolds, 
 
 3 Vt. 234. pp. 410, 417. 
 Upham v. Haskins, 62 Cal. 250 (1882). 
 
 p. 53. 
 
 Vail v. Poster, 4 N. Y. 312. p. 354. 
 Vail v. Vail, 4 N. Y. 312. 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 Aernam, 1 Barb. 
 
 Ch. 375. pp. 114, 118. 
 Van Buren v. Cockburn, 14 Barb. 118. 
 
 pp. 396, 576. 
 Vance ». Com., 2 Va. Cas. 133. p. 
 
 179. 
 Vandercock v. Baker, 48 Iowa, 199. 
 
 p. 57. 
 Vanderveere v. Gaston, 25 N. J. L. 
 
 615. p. 40. 
 Vandick v. VanBuren, 1 Caine's Rep. 
 
 34. p. 427. 
 
 Van Etten v. Jilson, 6 Cal. 19. p. 29. 
 Van Hook i>. City of Selma, 70 Ala. 
 
 361. 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. 
 
 854. 
 Vatber v. Zane, 6 Gratt. 246. p. 77. 
 Vaughn v. Ealeigh, etc., B. Co., 63 
 
 N. C. 11. p. 185. 
 Vaughn a. Bbodes, 2 McCord, 227; 
 
 73 Am. Dec. 713. p. 115. 
 Vermieombe v. Butler, 3 Sw. & T. 
 
 580. p. 83. 
 Villars v. Villars, 2 Atk. 71. p. 159. 
 Villars, Ex parte, L. B. 9 Ch. App. 
 
 443. p. 264. ' 
 Ville 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. 
 Voorhees v. U. S. Bank, 10 Pet. 474. 
 
 pp. 30, 34. 
 
 W. 
 
 Waddell v. Judson, 12 La. Ann. 14. 
 
 p. 54. 
 Waddell v. Magee, 53 Miss. 687. p. 
 
 64. 
 Wadsworth, Be, 2 La. Ann. 966. pp. 
 
 39. 
 Wagers v. Dickey, 17 Ohio, 439. p 
 
 29. 
 Wainwright, Be, 1 Sw. & Tr. 257. p. 
 
 242. 
 Wakeman «. Marquand, 5 Mart. (ir. 
 
 s.) 270. p. 370. 
 Walker's Case, 1 Leigh, 574. p. 486. 
 Walker's Case, 5 City Hall Bee. 137. 
 
 pp. 279, 281. , 
 
 Walker v. Davis, 33 Me. 576. p. 78. ' 
 Walker v. Hauks, 27 Tex. 535. p. 403. 
 Walker v. Maxwell, 1 Mass. 103. p. 
 
 370. 
 
lxxxvi 
 
 TABLK OF CASES CITED. 
 
 "Walker v. State, 49 Ala. 370. p. 39. 
 Walker v. Walker, 1 Mo. (App.t 404. 
 
 p. 173. 
 Wallace v. Agry, 4 Mason, 336. p. 
 
 353, 354. 
 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 v. Ball, 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 v. Eldridge, 1 Allen, 203. p. 
 
 351. 
 "Walton v. Gavin, 16 Q. B. 48. p. 50. 
 Wambaugh v. Sohlenk, 2 N. J. L. 
 
 167. p. 215. 
 Wanmaker v. Van Buskirk, 1 Saxt. 
 
 Ch. 685; 23 Am. Dec. 748. pp.316, 
 
 318, 333, 340. 
 Ward v. Baker, 16 Kan. 31. p. 36. 
 Ward v. Barrows, 2 Ohio St. 241. p. 
 
 55. 
 Ward u. Evans, Ld. Eaym. 928. p. 
 
 354. 
 Ward v. Howe, 38 N. H. 35. pp. 353, 
 
 354. 
 Ward v. Lewis, 4 Pick. 578. p. 86. 
 Ward v. State, 48 Ind. 290. p. 54. 
 Ward v. Stout, 32 111. 309. p. 19. 
 Ward v. Ward, 36 Ark. 586. p. 280. 
 Warder v. Tucker, 7 Mass. 452. p. 6. 
 Wardour v. Beresford, 1 Vern. 408. 
 
 p. 141. 
 Wariield v. Brand, 13 Bush, 77. p. 
 
 54. 
 Waring v. Smyth, 2 Barb. Ch. 11. p. 
 
 396. 
 Warner v. Daniels, 1 Woodb. & M. 
 
 90. p. 120. 
 
 Warner v. Henby, 47 Pa. St. 187. pp; 
 
 403, 407. 
 Warren v. Anderson, 8 Soott, 884. p, 
 
 253. 
 Warren v. Crew, 22 Iowa, 315. p. 
 
 142. • 
 Warren v. Layton, 3 Harr. (Del.) 404. 
 
 p. 394. 
 Warren v. Lusk, 16 Mo. 111. p. f" 
 Warren 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. 264. 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. Peek, 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. E. Co., 40 la. 342, 
 
 p. 192. 
 
 Weale v. Lomer, Pollex. 55. p. 195, 
 Weatherford v. Weatherford, 20 Ala. 
 
 548. p. 106. 
 Weatherhead v. Baskerville, 11 How. 
 
 829. p. 401. 
 Weaver v. Pairchild, 50 Cal. 360 
 
 p. 53. 
 Webb, Ee, Irish Eep. 5 Eq. 235. p. 
 
 198. 
 Webb v. Chambers, 3 Ired. (L.) 374. 
 
 70. 
 
TABLE OF CASES CITED. 
 pp. 
 
 Ixxxvii 
 
 Webb v. Dean, 21 Pa. St. 31 
 
 321, 327. 
 "Webb o. Denn, 17 How. 676. p. 563- 
 "Webb v. Fritz, 8 Baxt. 218. p. 55. 
 "Webb v. State, 9 Tex. App. 490. p, 
 
 459. 
 "Webber v. Webber, 1 l^etc. (Ky.) 18. 
 
 p. 54. 
 Webster's Case. p. 443. 
 Webster v. Bircbmore, 13 Vesey, 862. 
 
 pp. 195, 222. 
 Webber v. Gottschalk, 15 La. Ann. 
 
 376. p. 54. 
 Webster v. Lee, 5 Mass. 534. p. 78. 
 Weeks u. Ellis, 2 Barb. 325. p. 49. 
 Weidner v. Scweigert, 9 S. &E. 385. 
 
 p. 347. 
 Weir v. Weir, 3 B. Mon. 645. p. 75. 
 Welch v. Sackett, 12 Wis. 257. pp. 
 
 168, 304. 
 Welch v. Seaborn, 1 Stark. 474. p. 
 
 301. 
 Wellauer v. Fellows, 48 Wis. 105. p. 
 
 852. 
 Wellersburg, etc., Co. v. Bruce, 6 
 
 Md. 457. p. 54. 
 Wells v. Burbank, 17 N. H. 393. p. 
 
 54. 
 Wells v. Moore, 15 Tex. 521. p. 397. 
 Wendell v. Blancbard, 2 N. H. 456. 
 
 p. 403. 
 Wentworth v. Lloyd, 10 H. L. Cas. 
 
 689. p. 137. 
 Wentworth v. Smith, 44 N. H. 419. 
 
 p. 182. 
 Wentworth v. Wentworth, 71 Me. 
 
 83. pp. 212, 215. 
 Wenz v. State, 1 Tex. App. 36. p. 
 
 274. 
 Werk v. Leathers, 1 Woods, 272. p. 
 
 102. 
 Wcrnet v. Mississquoi Lime Co., 46 
 
 Vt. 458. p. 344. 
 West v. State, 1 Wis. 209. pp. 451, 
 
 687. 
 West School District v. Merrills, 12 
 
 Conn. 437 p. 53. 
 Weston v. Higgins, 40 Me. 102. p. 
 179. 
 
 Weston v. Wiley, 78 Ind. 55. p. 353 
 Whaley v. State, 11 Ga. 127. p. 638, 
 Wheat v. State, 6 Mo. 455. p. 465. 
 Wheeler, Ee, 37 L. J. (P. & M.) 40, 
 
 p. 241. 
 Wheeler v. Baymond, 8 Cow. 311. p, 
 
 30. 
 Wheelock v. Hall, 3 N. H. 310. p, 
 
 54. 
 Whelton v. Hardesty, 8 El. & Bl 
 
 232. p. 569. 
 Wheelwright v. Wheelwright, 2 Mass, 
 
 447. p. 303. 
 Whister u. Drake, 85 Iowa, 103. p 
 
 353. 
 Whitaker v. Edmunds, 1 M. & E. ; 
 
 AS. & Ell. 638. p. 97. 
 Whitaker «. Morrison, 1 Fla. 25; 44 
 
 Am. Dec. 627. p. 576. 
 White v. Haas, 32 Ala. 432. p. 390. 
 White v. Knapp, 47 Barb. 549. p. 
 
 372. 
 White v. Lincoln, 8 Ves. 363. pp. 
 
 148, 540. 
 White v. Loring, 24 Pick. 319. p. 
 
 404. 
 White v. Mann, 26 Me. 363. p. 224. 
 White v. Sheldon, 4 Nev. 280. p. 
 
 304. 
 Whito v. Wilson, 13 Vesey, 87. p. 
 
 179. 
 Whitelock v. Musgrove, 8 Tyrw. 543. 
 
 p. 254. 
 Whiteside's Appeal, 23 Pa. St. 114. 
 
 p. 201. 
 Whitewell v. Barbour, 8 Cal. 64. p. 
 
 29. 
 Whitford v. Panama E. Co., 23 N. T. 
 
 465. p. 373. 
 Whiting v. Nicholl, 43 111. 235. p. 
 
 201. 
 Whitman v. State, 34 Ind. 312. p. 
 
 118. 
 Whitton v. State, 37 Miss. 379. pp. 
 
 7, 453. 
 Wickershata v. People, 2 111. 128. p. 
 
 256. 
 Wiekes v. Adirondack Co., 4 Thbmp., 
 etc., 250. p. 420. 
 
Ixxxviii 
 
 TABLE OF CASES CITED. 
 
 "Wickes v. Caulk, 5 H. & J. 41. p. 
 
 381. 
 Wickham v. Page, 49 Mo. 527. p. 
 
 36. 
 Widow's Trust, L. E. 11 Eq. 408. 
 
 p. 303. 
 Wikoflfs Appeal, 15 Pa. St. 218. p. 
 
 381. 
 Wilde v. Arsmby, 6 Cush. 314. p. 
 
 393. 
 Wilcox v. Wilcox, 48 Bart. 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. B. 468. pp. 
 
 94, 435, 451, 586. 
 Wilkinson v. Sargent, 9 la. 521. p. 
 
 77. 
 Willet u. Com., 13 Bush, 230. p. 
 
 284. 
 Willey v. Day, 51 Pa. St. 51. p. 4U3. 
 Williams v. Ashton, Johns. & M. 115. 
 
 p. 387. 
 Williams •„. Boozeman, 8 La. Ann. 
 
 532. p. 264. 
 Williams v. Donnell, 2 Head, 698. rj. 
 
 403. 
 Williams v. East India Co., 3 East, 
 
 104. pp. 94, 277, 436 
 Williams v. Hutchinson, 3 N. Y. 312. 
 
 p. 75. 
 Williams ». 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. Pox, 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 -u. Light, 4 Ark. 158. p. 34. 
 Wilson v. Cassidy, 2 Ind. 562. p. 
 
 160. 
 Wilson v. CockTill, 8 Mo. 7. p. 370. 
 Wilson v. Dougherty, 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. 
 
 463. 
 Wilson v. People, 3 Col. 325. p. 35. 
 Wilson o. Smith, 5 Yerg. 379. p. 
 
 176. 
 Wilson v. Stoner, 9 S. & E. 664. p. 
 
 415. 
 Winchell u, 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. 
 WinkleycKaime, 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 u. Corl, 4 Mete. 203. pp. 371, 
 
 372. 
 Wood v. Hardy, 11 La. Ann. 760. 
 
 p. 844. 
 Wood v. Lake Shore E. Co., 49 Mich. 
 
 370. p. 36. 
 Wood v. Mathews, 73 Mo. 482. p. 
 
 181. 
 
TABLE OF CASES CITED. 
 
 lxxxix 
 
 Wood v. State, 34 Ark. 841. p. 274. 
 Wood v. Terry, 4 Lans. 80. p. 55. 
 "Woods v. Woods, 2 Bay, 476. p. 200, 
 Woods u. Woods, 127 Mass. 141. p 
 
 355. 
 Woods t>. State, 6 Baxt. 426. p. 55 
 Woodworth v. Huntoon, 40 111. 131 
 
 p. 77. 
 Woolsey v. Morss, 19 Hun, 273. p. 
 
 405. 
 Woolsey v. Village of Eondout, 4 
 
 Abb. App. Dec. 639. pp. 47, 50. 
 Wooten -o. Nail, 16 Ga. 609. p. 345. 
 Worley r. High, 40 Ala. 171. p. 320. 
 Wniy v. Doe, 10 S. & M. 452. p. 54. 
 Wright v. Delafield, 23 Barb. 498. 
 
 p. 374. 
 Wright v. Hicks, 12 Ga. 155. p. 116. 
 Wright v. Holdgate, 3 C. &K. 158. p. 
 
 118. 
 Wright v. Lawson, 2 M. & W. 739. 
 
 p. 89. 
 Wright v. Netherwood, 2 Salk, 592. 
 
 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. 332. p. 54. 
 Wynne v. Waring, 1 T. B. 20. p. 
 336. 
 
 Y. 
 
 Tarborough «. State, 41 Ala. 405. p. 
 
 487. 
 Yarnell v. Moore, 3 Cold. 173. p. 
 
 320. 
 Yates v. Houston, 8 Tex, 433. pp. 
 
 93, 435, 448, 583, 684. 
 Tauke v. State, 51 Wis. 466. p. 493. 
 Yeaton v. Bk. of Alexandria, 5 
 
 Cranch, 9. pp. 17, 73. 
 Young v. Dorsey, 2 Litt. 202. p. 36. 
 Young v. Bidenbaugh, 3 Dill. 23. p. 
 
 36. 
 Youngman v. Linn, 52 Pa. St. 413. 
 
 p. 403. 
 Youngs o. Hefifner, 36 Ohio St. 232. 
 
 p. 200. 
 
 Zeigler v. Eckhart, 6 Pa. St. 13 ; 47 
 
 Am. Dec. 428. p. 304. 
 Zeigler v. Gray, 12 S. & B. 42. p. 
 
 346. 
 Zerano v. Wilson, 8 Cush. 424. p. 
 
 354. 
 
THE LAW OF 
 
 Presumptive Evidence 
 
 (INCLUDING PRESUMPTIONS BOTH OF 
 LAW AND FACT) 
 
 REDUCED TO RULES. 
 
 (i) 
 
PART I. 
 
 THE PRESUMPTION OE KNOWLEDGE. 
 
 (3) 
 
CHAPTER. I. 
 
 THE PRESUMPTIONS OF KNOWLEDGE OF LAW AND 
 
 FACT. 
 
 RUIiE 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. 1 
 
 The presumption that every person knows the law is often' 
 spoken of, but it is clear that there is ho 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." 2 "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 
 
 i See Laing v. Colder, 8 Pa. St. 479; 49 Am. Dec. 533 (1848); Kay v. Connor, 8 
 Humph. 624; 49 Am. Dec. 690 (1848) ; Cluff v. Mutual Benefit Life Ins. Co., 13 Allen, 308 
 (1866) ; Sherrill v. Hopkins, 1 Cow. 103 (1823) ; Hanrick v. Andrews, 9 Port. 576 (1839) ; 
 Gast v. Drakely, 2 Gill, 330 (1844) ; Oilex v, Gard, 23 Ind. 212 (1864) ; Brown v. Beers, 
 6 Conn. 213 (1826) ; Cockayne v. Sumner, 22 Pick. 117 (1839). 
 
 ' Jones v. Kandall, Cowp. 38. 
 
 (5) 
 
6 PRESUMPTIVE EVIDENCE. [RULE 1. 
 
 examine his books and give me the information which the 
 law itself ought 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 could 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 
 everybody 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. 1 
 
 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. 3 
 
 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 Bntler o. Livingston, 15 Ga. 565 (1854). 
 
 i Hears v. Graham, 8 Blackf. 144 (1846). 
 
 3 Shotwell v. Murray, 1 Johns. Oh. 512 (1815) , and see Champlin v. Layton, 18 Wend. 
 407; 31 Am. Dee. 382 (1837). 
 
 * Stevens v. Lynch, 12 East, 38 (1810), and see Goodman ». Sayres, 2 Jao. A W. 263 
 (1820) ; Brisbane v. Dacres, 5 Taunt. 143 (1813) ; East India Co. v. Tritton, 3 B. & C. 
 280(lS21);Stockley v. Stockley, 1 V. & B. 23 (1813); Clarke v. Dutcher,9 Oow.671 
 (1824) ; Warder v. Tucker, 7 Mass. 452 (1811). 
 
EULE l.J THE PRESUMPTION 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 intoxicated 
 person not being aware of the law. B. is nevertheless liable as he is 
 presumed to know it. 1 
 
 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. 2 
 
 VII. A. is indicted for suffering gaming in his house. It appears that 
 A. does not know it is unlawful to permit gaming in his house. His igno- 
 rance of the law does not excuse A. 8 
 
 VIII. A statute requires attorney's bills to inform their clients on their 
 face of the matters transacted and the courts in 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 in 
 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." 
 
 XI. 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. 7 
 
 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. 8 
 
 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. 9 
 
 1 Whitton v. State, 37 Miss. 379 (1889). 
 
 * Com. v. Bagley, 7 Peck. 279 (1828). But see Cutler v. State, 36N. J. (L.) 125 (1873) 
 where in a similar case, the conviction was set aside on the ground that the intent 
 was wanting. 
 
 a Winehart v. State, 6 Ind. 30 (1854). 
 
 * Martindaler. Falkner, 2 C. B. 715 (1846). 
 
 6 Queen v. Mayor of Tewkesbury, L. K. S Q. B. 629 (1868). 
 
 * Goodwyn v. Baldwin, 59 Ala. 127 (1877). 
 
 » Pattison v. Prior, 18 Ind. 440 (1862), and see Daniels v. Barney, 22 Ind. 207 (1864). 
 
 8 State v. Welch, 73 Mo. 234 (1880). 
 
 8 Baxter v. Duren, 29 Me. 434 ; 60 Am. Dec. 602 (1849). 
 
8 PRESUMPTIVE EVIDENCE. [RULE I; - 
 
 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 
 against 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 doubtand 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 1 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." 1 
 
 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 such a case the general doctrine which 
 
 l 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 has 
 had reasonable opportunity to know them, and nothing can be more liable to abuse 
 than to permit a person to reclaim his property in opposition to all the equitable 
 circumstances which have been stated, upon the mere pretense that he was at tho 
 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. Richmond, 2 Johns. Ch. 61 (1816). 
 
BULK 1;] THE PRESUMPTION OF KNOWLEDGE. *9 
 
 wo find established must prevail that every man is to be 
 charged with a knowledge of the law." 
 
 In case IV. Lord Ellenborough 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 VI. 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 case VIII. 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 existing as the six clerks' office? and I do not 
 see why Miss Mary Falkner is bound to know it. The 
 l>ill * * * 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 and reason if it were 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 PRESUMPTIVE EVIDENCE. [RULE 1. 
 
 that he was the returning officer, and every elector who was 
 a lawyer and who had read the case of Beg. v. Owens, 1 
 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 
 disqualified ? I agree that ignorance of the law does not 
 excuse. But I think that in Martindale v. Fallener (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. ' 4 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 
 
 l 2 E. & E. 86. And see Black v. Ward, 27 Mich. 191 (1873). 
 
 s Watrous v. Rogers, 16 Tex. 410 (1856). 
 
 » 43 Ala. 297 (1869). 
 
 * Broom's Legal Maxims, top page 205. 
 
RULE 1.] THE PRESUMPTION OF KNOWLEDGE. II 
 
 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, however, 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 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, was pre- 
 sumed to know this special act of the Legislature was, and 
 would be held, unconstitutional, and was, therefore, void 
 and no law. We 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 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 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." 
 
 In case 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 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 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 fur 'andi, 
 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 
 f romMr. Wharton. 1 Ho wever 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 
 
 l Bishop, i South. Law Eev. (N. 8.) 58, 
 
KTJLE 1.] THE PRESUMPTION OF KNOWLEDGE. 13 
 
 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 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. 1 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. 8 So parties are presumed 
 to know the contents of the public records 8 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 presumed 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. 
 Th« 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. 8 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 
 
 I Ganldin v. Shebee, 20 Ga. 531 (1856). 
 > Loomis v. Riley, 24 111. 307 (1860). 
 » Lancey «. Bryant, 30 Me. 466 (1819). 
 • Palmyra v, Morton, 26 Mo. 593 (1857). 
 » Hart ». Roper, 6 Ired. (Eq.) 349 (1849). 
 
14 PRESUMPTIVE EVIDENCE. [PULE 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. 1 
 
 EXILE 2. — But there is no presumption of knowledge of 
 private or foreign 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 proportions, 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 entitled to a larger 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. 3 
 
 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 known to the 
 
 i Boyers v. Pratt, 1 Humph. 90 (1839). 
 « Haven v. FoBtcr, 9 Pick. 112 (1829). 
 « King v. Doolittle, 1 Head, 77 (1858). 
 
RULE 3.] THE PRESUMPTION OF KNOWLEDGE. 15 
 
 court by proof like other facts, why should not ignorance 
 of them by private individuals have the same effect upon 
 their acts as ignorance of other facts? Juris ignorantia 
 est cum jus nostrum 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. 1 ' 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 him 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 Hollman v. 
 Johnson, 2 the 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 breach 
 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." 
 
 RULE 3. — 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). 
 
 Illustrations. 
 A. 
 
 I. A person takes some bank bills to a banker to be exchanged forgold, 
 and the banker, after examining them buys them from him at a discount. 
 
 l Cambiose v. Maffet, 2 Wash. 0. 0. 104 (1807). 
 > Cowp. 311. 
 
16 , . PBESTJMPTIVE EVIDENCE. [EULE 3. 
 
 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 
 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. 1 
 
 B. 
 
 I. D. imports into New York a quantity of spelter, which under the 
 name of tutenague is exempt from duty. The collector, howevar, 
 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. 1 
 
 "It is a reasonable presumption," it was said in easel., 
 " 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." 
 
 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. 5 
 
 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 by it.' 
 
 1 Hinckley v. Kersting, 21 111. 247 (1859). 
 
 ' Moore v. Des Arts, 2 Barb. Ch. 636 (1848). 
 
 » Sutton v. Tatham, 10 Ad. & Ell. 27 ; Bayliffe ». Butterworth, 1 Ex. 25. 
 
 « McAlister v. Beab, i Wend. 483, 8 Id. 109; Meech v. Smith, 7 Id. 315. 
 
P.ULE 3.] THE PRESUMPTION OF KNOWLEDGE. 17 
 
 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. 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 without a special contract, he can not be dis- 
 missed until the end of it. Both A. and B. are presumed to know this 
 custom. 2 
 
 All trades have their usages, and when a contract is made 
 with a man ahout 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. 3 
 
 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 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. 
 
 1 Mills v. Bank of IT. S., 11 Wheat. 431; Renner v. Bank of Columbia, 9 Id. 582; 
 Bank oi Washington v. Triplett, 1 Pet. 25 ; Teaton v. Bank of Alexandria, 5 Cranch, 
 
 9; Smith v. Whiting, 12 Mass. 6; Dorchester, etc., Bank v. New England Bank, 1 
 Cush. 177. 
 
 2 Given v. Charron, 15 Md. 502, and see Lyon v. George, 44 Md. 295. 
 
 8 Pittsburg v. O'Neil, 1 Penn. St. 343; Rindskoff v. Barrett, 14 Iowa, 101; Bcatty 
 v. Gregory, 17 Id. 109; Toledo, etc., Insurance Co. v. Speares, 16 Ind. 52; Grant v. 
 Lexington Fire Insurance Co., 5 Id.1% ; Barrett v. Williamson, 4 McLean, 5S9 ; Greaves 
 v. Legg, 11 Ex. 642; 2 If. &N. 210. In aNew 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 ice, 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 
 principal nor 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 not excuse him." Walls v. Bailey, 49 N. T. 461 
 
 2 
 
18 PRESUMPTIVE EVIDENCE. [RULE 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 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. 1 
 
 KUL.E 4. — The contents of a writing signed by a party 
 himself, or by another at his request, are presumed 
 to be known to him (A), and so of a paper drawn up 
 by one for another (B), and the matters referred to in 
 such writing (G). 
 
 Illustrations. 
 
 I. An action is brought against P. on a 'written contract. S. testifies 
 that he signed it at P.'s request for Mm, as P. could not write, but lie 
 does not remember whether or not the contents were read over or 
 explained to P. The presumption is that P. knew the contents. 2 
 
 II. A. signs an agreement to take 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 payment at once. 
 In an action against him A. is presumed to have been acquainted with 
 the contents of the paper. 8 
 
 ' 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. 4 
 
 IV. A. signs a will with his mark. The presumption is that A. knows 
 Its contents. 5 
 
 1 Miller v. Burke, 68 N. Y. 625; Flynn v. Murphy, 2 E. D. Smith, 878 J Farmers, 
 etc., Bank v. Sprague, 68 N. Y. 605 ; Pierpont v. Fowle, 2 Woodb. & M. 23; Smith i>. 
 Gibbs,44N. H.335. 
 
 Harris i>. Story, 2 E. D. Smith, 363 (1864). 
 
 s Clems. E. Co., 9 Ind. 489 (1857). 
 
 * Androscoggiu Bank v. Kimball, 10 Cush. 874 (1852). 
 
 & Doran d. Mullen, 7S 111. 342 (1875). Signing a paper as a witness creates no pro- 
 sumption that he knew its contents. Hill v. Johnston, 3 Ired. (Eq.) 432 (1844). 
 
KULE 4. J THE PItESUMPTION OF KNOWLEDGE. 19 
 
 In case IV. it was said: " The will is found with his sig- 
 nature to it, and the presumption is that he 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. fot professional services. 
 B. afterward forms a partnership with C, A. drawing up the articles. 
 A. afterward brings suit on the claim against the firm. A. is presumed 
 to know the terms of the partnership between B. and C. 1 
 
 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 *s surety. 2 
 
 (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 examined the patent and knew this. 3 
 
 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 description, which, without 
 some reference to something else, would be unintelligible, 
 but in my deed reference is made to the original patent by 
 which it was conveyed by the government to my grantor, 
 the description would become as certain, definite and satis- 
 factory as if that description were copied into my deed, 
 and nothing short of positive proof of a fraud, or clear 
 mistake, would remove the presumption that I had exam- 
 ined or understood the contents of the patent." 
 
 1 Burrett v. Dickson, 8 Col. 113 (1857). 
 " Ward v. Stout, 32 111. 309 (1863). 
 8 Myers «. Turner, 17 111. 179 (1866). 
 
20 PRESUMPTIVE EVIDENCE. [RULE 5. 
 
 RULE 5 . — The burden of proof is on the party to show 
 a material fact of which he is hest cognizant. 1 
 
 Illustrations. 
 
 I. A suit is brought by E. 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. 2 
 
 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. 3 
 
 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. 4 
 
 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. 5 
 
 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. 6 
 
 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 they 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. 7 
 
 " 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 E. 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 (1S58). 
 
 2 Rugely v. Gill, 15 La. Ann. 509 (1800), and see Bowman v. McElroy, 15 Id. 963 
 (I860). 
 
 3 Corwin v. Shoup, 76 111. 216 (1875). 
 
 i Nelson v. Central II. Co., 48 Ga. 152 (1S73). 
 
 6 Mcdlock v. Brown, 4 Mo. 379 (1830). 
 
 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 
 N. II. 235 (I860) , State v. Foster, 23 N. H. 348 (1851). 
 
 i Great Western R. Co. v. Bacon, 30 111. 347 (1863). 
 
RULE 5. J THE PRESUMPTION OF KNOWLEDGE. 21 
 
 concern; and if so he should have been joined 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." 
 
 Incase 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. When it is as easy for the plaintiff to prove the 
 negative 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 was' not more than five miles from a settlement ; but 
 where the means of proving the negative are not within tlie 
 
22 PRESUMPTIVE EVIDENCE. [KULE 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, 
 which 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." 
 
 AVhere 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; 1 and where 
 a party seeks to avoid the effect of a promise made by him 
 
 l Haley v. Lacey, 1 Sawn., 493 (1853). 
 
EULE 7. J THE PRESUMPTION OF KNOWLEDGE. 23 
 
 on the ground that he was ignorant of material facts the 
 burden is on him to show this. 1 
 
 EULE 6. — The burden of proof of notice to a bona fide 
 purchaser is on the person alleging 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 Chad notice of P.'s 
 rights is upon P. 1 
 
 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. 8 
 
 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 be shown, if particular persons were 
 produced by the parties." 
 
 1 Burton v. Blin, 23 Vt. 152 (1851). 
 
 ' Calais Steamboat Co. v. Van Pelt, 2 Black, 273 (1862) 
 
 3 Scovill v. Baldwin, 27 Conn. 317 (1858). 
 
PART II. 
 
 THE PRESUMPTIONS OF REGULARITY 
 
 AND INNOCENCE. 
 
 (25) 
 
CHAPTEK 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. 1 
 
 Illustrations. 
 
 I. In a suit in a court of chancery, a grant of administration by a pro- 
 bate court was objected to as invalid. The order of this court granting 
 letters of administration did not show that 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. 2 
 
 In case I. it was said : " Our courts of probate are not 
 inferior in the technical sense of that term, as nsed 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 toy 
 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. 9 
 
 Nothing shall be intended to, be out of the jurisdiction of 
 
 1 Markel v. Evans, 47 Ind. 336 (1874) ; Butcher v. Bank of Brownesville, 2 Kas. 80 
 (1863) ; State v. Lewis, 23 N. J. (L.) 564 (1848) ; Railway Co. v. Ramsay, 22 Wall. 322 
 (1874) ; Palmerw. Oakley, 2 Doug. (Mich.) 47; 47 Am. Deo. 1 (1847) ; Horner v. State 
 Bk., 1 Ind. 130; 48 Am. Deo. 355 (1848) ; Mechanics', etc., Bk. v. Union Bank, 22 Wall. 
 276 (1874) ; Davis v. Hudson, 29 Minn. 28 (1881) ; Reed v. Vaughan, 15 Mo. 141 (1851) ; 
 Hays v. Ford, 55 Ind. 52 (1876) ; Hahn v. Kelly, 34 Cal. 400 (1868) ; Wallace v. Cox, 71 
 111. 518 (1874).. 
 
 » Brien t>. Hart, 6 Humph. 131 (1S15) ; and see Kilcrease v. Blythe, 6 Id. 379 
 (1S45). 
 
 3 Thatcher v. Powell, 6 Wheat. 127; Kempe v. Kennedy, 5 Oranch, 173; Jackson v. 
 NewMilford Bridge Co., 34 Conn. 266 (1S67) ; Pelton ■«. Palmer, 13 Ohio, 209 (1848) i 
 Goulding v. Clark, 34 N. H. 148 (1856) ; Palmer v. Oakley, ante. 
 
 (27) 
 
28 PRESUMPTIVE EVIDENCE. [RULE 9. 
 
 a superior court, but that which specially appears to be so, 
 and nothing will be presumed to be within the jurisdiction 
 of inferior courts, but that which is expressly alleged. 1 " 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." 3 
 
 "It is undoubtedly true," say the Supreme Court of the 
 United States in Galpin v. Page, 3 " 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." 
 
 l Peacock v. Bell, 1 Saund. 74. 
 
 a K v. Totness, 11 Q. B. 80 (1S49) ; Dempsters. Parnell, i Scott, N. E. 30 (1841); 
 King v. Fell, 1 Bald. 386 (1830) ; Swain v. Chase, 12 Cal. 283 (1859) ; Bosworth v. Van- 
 dewalker, 63 N. Y. 597 (1873); Spear v. Carter, 1 Mich. 19; 48 Am. Dec. 688 (1847); 
 McClure v. Hill, 36 Ark. 273 (1880) ; Keep?). Granni8, 3 Nev. 548 (1867). In K. v. Gonchc. 
 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 inK. v. Helling, 1 Strange, 7, decided in 1780. The latter rulingwas affirmed 
 by Lord Kenyon in King v. Inhabitants of Hulcott, 6 T. E. 585, in the year 1796, after 
 a review of all the earlier authorities. 
 
 8 18 Wall. 364 (1873). 
 
RULE 9. J REGULARITY OF JUDICIAL ACTS. 29 
 
 The meaning of " inferior court" in the above rule, is 
 not, as will have been observed from the language just 
 quoted, the broad meaning which this phrase sometimes 
 bears. By an " inferior court," is meant one with only 
 limited 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 presumption always is that the court from which 
 the appeal is taken has not erred, and this presumption 
 must be removed by proof before the court will reverse the 
 proceedings below. 1 "A revisory court never presumes 
 that an inferior tribunal has erred. The presumption is 
 that it has not. Until the contrary is shown by record 
 every court is presumed to have acted and decided cor- 
 rectly." 2 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, 3 a court of chancery,* court of probate, 6 a county 
 court in Illinois. 6 On the other hand these are inferior 
 courts within the rule, viz. : a justice of the peace, 7 a mag- 
 istrate whose authority is restricted by locality, 8 a county 
 court in Iowa. 9 
 
 In a Connecticut case 10 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 a 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 which this subject has been understood 
 
 i State v. Farish, 23 Mise. 483 (1852). 
 
 2 Wagers v. Dickey, 17 Ohio, 439 (1848) ; Coil v. Willis, 18 Id. 28 (1849). 
 8 Peacock v. Bell, 1 Saund. 74. 
 
 « Hopper?;. Fisher, 2 Head, 258 (1858) ; Kilcrease v. Blythe, 6 Humph. 379 (1845). 
 s Brien v. Hart, 6 Humph. 131 (1845) ; Kedmond v. Anderson, 18 Ark. 449 (1857). 
 « People v. Cole, 84 111. 327 (1876). 
 
 ' Swam v. Chase, 12 Cal. 283 (1859) ; Van Eltten v. Jilson, 6 Id. 19; Whitewell v. 
 Barbour, 1 1d. 64. 
 
 » E. v. Totness, 11 Q. B. 80 (1849) ; R. „. Bloomsbury, 4 El. & B. 520 (1854). 
 » County of Mills v. Hamaker, 11 Iowa, 206 (1860). 
 10 Fox. v. Hoyt, 12 Conn. 491 ; 31 Am. Dec. 763 (1838). 
 
30 presumptive: evidence. [rule 9. 
 
 either in England or in this country. We think that a court 
 of record proceeding according to the common law of the 
 land, 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 New 
 Jersey, Massachusetts, Vermont and Ohio have been con- 
 sidered as courts of general jurisdiction. 1 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." 
 
 Illustrations. 
 
 A. 
 
 I. A statute gives justices of the peace power to take the examination 
 of a soldier quartered in the place where the examination is taken. An 
 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. 2 
 
 " The rule," said Holroyd, J., in case I., " that in infe- 
 rior courts and proceedings by magistrates, the maxim 
 omnia prcesumuntur rite esse acta does not apply to give 
 jurisdiction has never been questioned. Here then the 
 jurisdiction should at all events have appeared on the face 
 
 l Citing Rempe v. Kennedy, 5 Cranch, 173 ; Wheeler v. Raymond, 8 Cow. 311; Har- 
 rod v. Barretto, 1 Hall, 155; Watkin'sCase, 3 Pet. 193; Voorhees v. U. S. Bank, 10 Pet. 
 474; Betta v. Bagley, 12 I>ick.672;Foot i>. Stevens, 17 Wend. 4S3; Watson v. Watson, 
 9 Conn. 144 ; Hall v. Howd, 10 Conn. 514. 
 
 > King v. Inhabitants of All Saints, 7 B. & C. 785 (182?). 
 
RULE 9. J REGULARITY 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 the heirs can not agree upon a 
 division or one of them is a minor. Under this law a county court par- 
 titions certain land. Its act is attacked. There is no presumption 
 that everything necessary to the validity of the judicial act has been done. 1 
 
 II. A statute provides that a magistrate shall 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.' 
 
 rv. 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. 4 
 
 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 t>. Thompson, 3 Crimen C. 0. 123 (1827). 
 
 * Goalding*. Clark, 34 N. H. 148 (1856). 
 
 » Graham v. Wliitely, 26 N. J. (L.) 263 (1857). 
 
 * Tompert v. Lithgow, 1 Bush, 176 (1866). 
 
32 PRESUMPTIVE EVIDENCE. [RULE 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 long 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 onlyinthe 
 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." 
 
 IncaseIII.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 
 prmsumuntur rile esse acta, does not apply so as to give 
 jurisdiction to magistrates, and to persons exercising a 
 special, limited, or mere si&tutory 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 jurisdiction — indeed having jurisdiction as a 
 court only for the purpose of the trial and removal of offi- 
 
KULE Jh] EEGULARITr OF JUDICIAL ACTS. 33 
 
 cers — everything essential to make it such a court must 
 appear affirmatively, and no intendment or presumption in 
 its favor can be indulged." 
 
 I. By a State statute service of process by publication is substituted In 
 place of personal citation in proceedings against persons without tlie 
 State. That the statute has been strictly followed must be proved, and 
 no presumption of jurisdiction will be indulged in. r 
 
 " 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 judgment or decree is asked, or 
 by seizure or attachment of the property where a judgment 
 in remis sought, the same presumption of jurisdiction will 
 usually attend the judgments of the court as in cases falling 
 within its general powers. 2 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 th« 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." 
 
 l Galpinu. Page, IS Wali. 364 (1873) ; Jordan v. Goblin, 12 Cal. 100; Eicketson v. 
 Richardson, 26 Id. 149; McMinn v. Whelan, 27 Id. 300; Morse v. Presby, 25 N. H. 302; 
 Com. v. Blood, 97 Maes. 638 (1867) ; Gray v. Larrimore, 4 Sawy 638 (1667) ; Cofleld v. 
 McClelland, 16 Wall. 331 (1872). 
 
 ' Harvey v. Tyler, 2 Wall. 332. 
 
34 PKESUMPTIVE EVIDENCE. [RULE 10, 
 
 BULE 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 
 shown, to exist (B.) 1 
 
 The maxim omnia jprcesumunlur rite esse acta finds, per- 
 haps, its best application in sustaining the validity of judi- 
 cial proceedings. They are presumed to be regular. 2 So 
 
 1 Merritt v. Baldwin, 6 Wis. 439 (1858) ; Outlaw v. Davis, 27 111. 467 (1861) ; Tharp 
 v. Com., 3 Mete. (Ky.) 411 (1861) ; Com. 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. & 
 P. 30 (1831). 
 
 2 Brown v. Connelly, 21 Ark. 140 (1840) ; Seegee v. Thomas, 3 Blatchf. Ill (1853); 
 Sanford v. Sanford, 28 Conn. 6 (1859) ; Sidwell v. Worthington, 8 Dana, 74 (1839) ; 
 Brown v. Gill, 49 Ga. 649 (1873) ; Hudson v. Measick, 1 Houst. 275 (1855) ; Tibbs v. 
 Allen, 27 111. 119 (1862) ; Moore v. Neil, 39 111. 256 (1866) ; Rosenthal v. Kcnick, 44 Id. 
 202 (1867) ; Owen v. State, 25 Ind. 371 (1865) ; Keely v. Garner, 13 Jd.400 (1859) ; Morgan 
 v. State, 12 Id. 449 (1859) ; McNorton v. Akers, 24 la. 369 (186S) ; Sumner v. Cook, 12 
 Has. 162 (1873) ; Letcher v. Kennedy, 3 J. J. Marsh. 701 (1830) ; Sprague v. Litherberry, 
 4 McLean, 412 (1848) ; Reynolds v. Nelson, 41 Miss. 83 (1866) ; Apthorp v. North, 14 
 Mass. 167 (1817) ; Com. o. Balkom, 3 Pick. 281 (1825) ; McGrews v. 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. 352 (1874) ; Florentine v. Barton, 2 Id. 210 (1864) ; Cofleld v. McClel- 
 land, 16 Id. 331 (1872) ; Addington v. Allen, 11 Wend. 374 (1883) ; Foot v. Stevens, 17 
 Id. 486; Erwinji. Lowry, 7 How. 181 ; Voorhees v. Bank of United States, 10 Pet. 449; 
 King r. Lyme Regis, 1 Dougl. 159 (1779) ; Caunco v. Rigby, 3 M. & W. 68 (1837) ; James 
 v. Heward, 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. Doc. 424 (184S) ; Tarler 
 v. Boston, etc., R. Co., 3 Cush. 107; 50 Am. Dec. 709 (1849) ; Armstrong v. 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 — Leavitt 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. Mooro v. 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. Holleman 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 v. Christian, 51 Ala. 495 
 (1874) ) even where the proceedings are summary. Shouse v. Lawrence, 51 Ala. 560 
 (1§74) . The refusal of a charge by the lower court which is not shown to be in writing 
 as required by statute, will be presumed to have beenrefused 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 (1880) ; Dean v. State, 37 Ark. 69 (1881) ; Pounders ». State, 37 
 Ark. 309 (1881) ; State v. Nichols, 38 Ark. 550 (18S2) ; St. Louis, etc., R. Co. v. Murphy, 
 38 Ark. 456 (1882) ; Casteel v. Casteel, 38 Ark. 477 (1SS2) ; Willson v. Light, 4 Ark. 158 
 (1842) ; Bizzell v. Williams, 8 Ark. 138 (1847). That jury was properly sworn below. 
 State v. Gibson, 21 Ark. 140 (1860). California — Parker v. Altschul, 60 Cal. 380 
 (1882) ; Roe v. Superior Court, 60 Cal. 93 (1833) ; Meredith v. Santa Clara Mining Co., 
 60 Cal. 617 (1882) ; Parnell v. Haahn, 61 Cal. 131 (1832) ; Onesti v. Freelon, 61 Cal. 625 
 ,(IS82) ; People v. Fuqua, 61 Cal. 377 (1882) ; Montgomery v. Merrill, 62 Cal. 386 (1832) ; 
 
KULE 10.] REGULARITY OF JUDICIAL ACTS. 35 
 
 too after verdict a court of review will assume that the 
 necessary facts to sustain it were proved. 1 
 
 Hastings v. Cunningham, 35 Cal. 549 (1868) ; Moyes «. Griffith, 35 Cal. S56 (1868) ; 
 Garrison v. McGlockley, 38 Cal. 78 (1869) ; Mahoney v. Middlelon, 11 Cal. 41 (1871) ; 
 Morris v. Angle, 42 Cal. 236 (1871) ; Wilson v. Dougherty, 45 Cal. 34 (1872) ; Brown v. 
 Kentfleld, 60 Cal. 129 (1875) . That person was present when verdict was rendered. 
 People v. Stuart, 4 Cal. 218 (1854). That evidence warranted verdict or judgment. 
 Doll v. Anderson, 27 Cal. 248 (1865) ; Folsom v. Root, 1 Cal. 374 (1851) ; Belt v. Davis, 1 
 Cal. 134 (1850) ; Kilburn v. Ritchie, 2 Cal. 145 (1852) ; Grewell v. Henderson, 7 Cal. 290 
 (1357) ; Nelson v. Lemmon, 10 Cal. 49 (1858) ; Hentsch v. Porter, 10 Cal. 555 (1858) ; 
 Brooks v. Douglass, 32 Cal. 209 (1867) ; Sears v. Dixon, 33 Cal. 326 (1867) ; Wallbridge 
 v. Ellsworth, 44 Cal. 353 (1872). Colorado — That grand jury was properly impan- 
 eled. Wilsono. People, 3 Col. 325 (1877). That verdict was in proper form. Christ 
 j). People, 3 Col. 394 (1877). Florida— Reed v. State, Story u. State, 16 Fla. 564 
 (1878) ; Miller v. Kingsbury, 8 Fla. 356 (1859). Georgria — Tyler Cotton Press Co. v. 
 Chevelier, 56 Ga. 494 (1876) ; Endres v. Lloyd, 66 Ga. 647 (1876) ; Tabb v. Collier , 68 
 Ga. 641 (1882) ; Shands v. Howell, 28 Ga. 222 (1859) ; Anderson v. State, 42 Ga. 9 (1871) ; 
 Kerwick v. Steelman, 44 Ga. 197 (1871); Deupree v. Deupree, 45 Ga. 414 (1872); 
 McKee v. McKee, 48 Ga. 332 (1873) ; Morris v. Ogles, 66 Ga. 592 (1875) ; Bryson v. 
 Chisholm, 56 Ga. 596 (1875) ; Laramore v. McKenzie, 60 Ga. 533 (1878) ; Hudgins v. 
 State, 61 Ga. 182 (1S78) ; LangBton v. Marks, 68 Ga. 435 (1882) ; McMichael v. Hardee, 
 68 Ga. 831 (1882). 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, 54 Ga. 45 (1875) ; Jordan v. Ingram, 67 Ga. 92 (1876) ; Eppirig v. 
 Tunstall, 57 Ga. 267 (1876) ; Mobile Fire Ins. Co. v. Miller, 68 Ga. 420 (1877) ; Madden 
 v. State, 58 Ga. 563 (1877) ; Burge v. State, 62 Ga. 170 (1879) ; Himt v. Pond, 67 Ga. 578 
 (1881); Sims v. State, 68 Ga. 486 (1882). Illinois — Kern v. Strasberger, 71 111. 303 
 (1874) ; Hermann v. Pardridge, 79 111. 471 (1875) ; People v. Gray, 72 111. 343 (1874) ; 
 Corbus v. Tweed, 69 111. 205 (1S73) ; Barnett t>. Wolf, 70 111. 76 (1873) ; Bush v. Harrison, 
 
 70 111. 480 (1873) ; Maxcy v. Williamson Co. 72 111. 206 (1874) ; Jones v. Neelcy, 72 111. 
 449 (1874) ; St. Louis, etc., R. Co. v. Wheelis, 72 111. 538 (1874) ; Choate v. Hathaway, 73 
 111. 519 (1874) ; Shattuck v. People, 5 111. 478 (1843) ; Reed v. Phillips, 5 111. 43 (1842) ; 
 Glancy v. Elliott, 14 111. 456 (1853) ; Dukes v. Rowley, 24 111. 210 (1860) ; Scott v. White, 
 
 71 111. 287 (1874) ;' Harris v. Lester, 80 111. S08 (1875) ; Merchants, Dispatch Trans. Co. 
 i>. Joesting, 89 111. 152 (1878) ; Brennan v. Shinkle, 89 111. 604 (1878) ; Carr v. Miner, 92 
 111. 604 (1S79) ; Augustine v. Doud, 1 111, (App.) 588 (1878) ; Tompkins v. Mann, 6 111. 
 (App.) 171 (1S80) ; Fuller v. Bates, 6 HI. (App.) 442 (1880) ; People v. Hessing, 28 111. 
 410(1862). That court below disregarded incompetent evidence. Ritter v. Schenk, 
 101 111. 387 (1882); Fisher v. Chicago, etc., R. Co. 104 111. 323 (1882). That bill of 
 exception shows the correct facts. Eastman v. People, 93 111. 112 (1879). Indiana — 
 Harvey ». Laflin, 2 Ind. 478 (1851) ; Cory v. Silcox, 6 Ind. 39 (1854) ; Houston v. Hous- 
 ton, 4 Ind. 139 (1853) ; Tam v. Shaw, 10 Ind. 469 (1S5S) ; Holloway v. State, 53 Ind. 654 
 (1876) ; State v. Steinmeier, 64 Ind. 87 (1878) ; Salander v. Lockwood, 66 Ind. 285 
 (1879) ; Hood v. Pearson, 67 Ind. 368 (1879) ; Ross v. Misner, 3 Blackf. 362 (1834) ; Bee- 
 man v. State, 5 Blackf. 165 (1839) ; State v. Beackmo, 8 Blackf. 246 (1846) ; Nichols v. 
 
 I Dobson v. Campbell, 1 Sumn. 319 (1833) ; Minor v. Mechanics' Bank, 1 Pet. 46 
 (1828) ; Bastard v. Trutch, 3 Ad. & Ell. 451 (1835) ; R. v. Whiston, 4 Id. 607 (1836) ; R. 
 ". Whitney, 5 Id. 191 (1836) ; R. v. Long Buckley, 7 East, 45 (1806) ; Lee v. Johnstone, 
 L. R. 1 H. L. Sc. 426 (1869) ; Reed ji. Jackson, 1 East, 855 (1801) ; Ramsbottom v. 
 Buckhurst, 2 M. & S. 567 (1813) ; R. v. Carlisle, 2 B. & Ad. 367 (1831) ; Jackson v 
 Pesked, 1 M. & S. 237 ; Spiers v. Parker, 1 T. R. 141 (1S76) ; Davis v. Black, 1 Q. B 911 
 (1841) ; Harris v. Goodwyn, 2 M. & Gr. 405; Gladthorpe v. Hardman, 13 M. & W. 377 
 (1844) ; Smith v. Keating, 6 C. B. 136 (1848) ; Kidgillu. Moor, 9 Id. 364 (1850) ; Delamere 
 v. Queen, L. R. 2 H. L. 419 (1867) ; R. v. Waters, 1 Den. C. C. 356; R. v. Bowen, 13 Q. 
 B. 790 (1849) ;. Gibbs v. Pike, 9 M. & W. 351 (1842). 
 
36 PRESUMPTIVE EVIDENCE. [RULE 10. 
 
 On the same principle the regularity of the proceedings 
 of a military court, 1 and the correctness of acts of legislative 
 bodies 2 are presumed. 
 
 Woodruff; 8 Blaokf. 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, 206 
 (I860) ; Pursley ». Hays, 17 Iowa, 310 (1864) ; Caudill v. Tharp, 1 G. Greene, 94 (1848) ; 
 Saum v. Jones Co., 1 G. Greene, 165 (1848) ; Rowan v. Lamb, 4 G. Greene, 468 (1854) ; 
 Henry v. Evans, 68 Iowa, 660 (1S82). 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 01 a sworn officer; 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. Shcllady, 8 Iowa, 477 (1859). Kansas — Mlckel v. Hicks, 19 Kas. 678 (1878) ; 
 Commrs. of Brown Co. v. Roberts, 22 Kas. 762 (1879) ; Murray v. Kelley, 23 Kas. 666 
 (1SS0). " 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 v. Baker, 16 Kas. 31 (1876) ; Haynes v. Oowen, 
 15 Kas. 277, 637 (1875). Kentucky — Totfngjj. Dorsey, 2 Litt. 202 (1822); Chrismano. 
 Gregory, 4 B. 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 (1849) ; Bullen v. Arnold, 31 Me. 683 (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 «. 
 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 
 D. Winona Mill Co., 28 Minn. 205 (1881) ; Jones v. Wilder, 28 Minn. 239 (1881) ; State ». 
 Brown, 12 Minn. 538 (1867). Mississippi — That court below acted properly, or on 
 sufficient evidence. Hightowcrr. State, 58 Miss; 636 (1881); Guice v. State, 60 Miss. 
 714 (1882) ; Taggart v. Muse, 60 Miss. 870 (1882) ; Smith v. State, 68 Miss. 867 (1881); 
 Dysous. State, 26 Miss. 362 (1853) ; Carter v. Blanton,33Miss. 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. 
 i). Scofield, 9 Neb. 499 (1880) ; Davenport Plow Co. v. Mewis, 10 Neb. 817 (1860) 
 Nevada — Nosier v. Haynes, 2 Nev. 53 (1866) ; Champion v. Sessions, 2 Nev. 271 
 (1866); Mitchell v. Bromberger, 2 Nev. 345 (1866); Virgin »■. Brubaker, 4 Nev. 31 
 (1868) ; State v. Stanley, 4 Nev. 71 (1868) ; Lady Bryan Gold, etc., Co. v. Lady Bryan 
 Mining Co., 4 Nev. 414 (1868) ; Flannory v. Anderson, 4 Nev. 438 (1868) ; Re Stickworth, 
 7 Nev. 223 (1872). New Jersey— Coxe v. Field, 13 N. J. (L.) 215 (1832). New 
 York— Barnard v, Heydrick,49Barb.62 (1S66). Ohio — Merchant v. North, 10 Ohio 
 St. 251 (1859); Sheehan v. Davis, 17 Ohio St. 671 (1S67); Hemmingway v. Davis, 24 
 Ohio St. 150 (1873). Pennsylvania— Fife ti. Com., 29 Pa. St. 429 (1867). Texas- 
 Frosh v. Holmes, 8 Tex. 29 (1852) ; Hillebrant v. Burton, 17 Tex. 138 (1856) ; Castancdo 
 v. 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 (1879) ; Knowlton v. Culver, 1 Chand. (Wis.) 214 (1S49). United 
 States — U. S. v. White, 5 Cranch C. C. 73 (1836) ; Young v. Ridenbaugh, S Dill. 23. 
 (1875) ; Sprague v. Litterberry, 4 McLean, 442 (1848). 
 
 1 Slade v. Minor, 2 Cranch C. 0. 139 (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. 627 (1872) 
 
RULE, 10. J REGULARITY OF JUDICIAL ACTS. 37 
 
 Illustrations. 
 A. 
 
 I. The record of a, probate court shows the regular appointment of an 
 administrator, and that on a subsequent day it was ordered that " the 
 resignation be " received and recorded, and that letters de 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. 1 
 
 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. 2 
 
 III. Lands of an infant are sold in pursuance of a decree of a circuit 
 court. On a bill filed to set aside the sale, the record shows that process 
 was ordered against the infants, and at the following term a guardian ad- 
 litem appointed. The presumption is that they, were regularly brought 
 into court. 3 
 
 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 
 be presumed that the bond on file was approved by the court. 4 
 
 V. A., in an action of book account, presents to the court .certain 
 matters for adjustment and allowance, which were passed upon by a ref- 
 eree and his report is accepted by the court. B. sues A. on two promis- 
 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 on the merits and 
 was a final settlement. 5 
 
 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 isithat 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. 7 
 
 1 Gray v. Cruise, 36 Ala. 559 (1860). 
 
 " State v. Gibson, 21 Ark. 140 (1860). 
 
 » Braekenridge v. Dawson, 7 Ind. 383 (1856). 
 
 * Cromelein v. Brink, 29 Pa. St. 522 (1853). 
 
 6 Stearns v. Stearns, 32 Vt. 678 (1860). 
 
 « People v. Garcia, 25 Cal. 531 (1864). 
 
 ' Beale v. Com., 25 Pa. St. 11 (1855). 
 
38 PRESUMPTIVE EVIDENCE. [RULE 10. 
 
 VIII. 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. 1 
 
 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. 2 
 
 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. s 
 
 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 judge 
 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. 6 
 
 XIV. The record does not show who presided at the trial below. The 
 presumption is that the judge rightly authorized by law did. 7 
 
 XV. It does not appear in a record whether a certain juror was swore 
 on the trial. The presumption is that he was. 8 
 
 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. 10 
 
 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. 11 
 
 1 Powell v. Sonnott, 3 Bing. S81 (1826). 
 
 2 Moore v. Titraan, 33 111. 358 (1864). 
 
 3 Illinois Cent. E. Co. v. Johnson, 40 111. 35 (1864) 
 
 * Lay v. Lawson, 23 Ala. 377 (1853) . 
 
 * Cookw. Skelton, 20 111. 107 (1858). 
 
 « People v. Mellon, 40 Cal. 648 (1871). 
 
 ' People v. Woodside, 72 111. 407 (1874). 
 
 s People v. Darr, 61 Cal. 538 (1882.) 
 
 o People v. Hall, 57 Cal. 569 (1881). 
 l« Pierce v. Edington, 38 Ark. 150 (1881). 
 n Foote v. Lawrence, 1 Stew (Ala.) 483 ( 
 
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. 1 
 
 XX. Parties appeal from a decree rendered on final hearing " on the 
 original and amended bills, with the exhibits 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. 2 
 
 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. 3 
 
 The Supreme Court will not presume that the District 
 Court received documents in evidence not properly stamped 
 as required by the United States law. 4 From delivery of 
 letters of administration it is presumed that oath required of 
 the administrator was taken. 5 Probf that certain lost writs 
 were issued by the proper officer raises a presumption that 
 they were sufficient as to form and seal. 6 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. 7 A modification of judgment made by the court 
 after verdict will be presumed to have been made on the 
 statutory grounds. 8 It will be presumed that an order 
 directing a sheriff to sell property of a succession was regu- 
 larly issued. 9 Where the law requires that the bond given 
 
 1 People v. Sing Linn, 61 Cal. 538 (1882) . Missouri cases contra. 
 
 2 Collins v. Loyal, 66 Ala. 403 (1876) ; and see Hearn v. State, 62 Ala. 218 (1878). 
 
 8 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 be presumed to have been 
 administered when it appears that the jury was sworn, unless it also appears that 
 one substantially different or defective was administered. Walker v. State, 49 Ala. 
 370; McCaller ». State, 49 Ala. 40; Crist v. State, 21 Ala. 149; Blair v. State, 52 Ala. 
 344; DeBardelabanc. State, 60 Ala. ISO; Moore v. State, 62 Ala. 424; Bush v. State 
 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 v. 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 supra are overruled." 
 
 * Towne v. Bossier, 19 La. Ann. 162 (1867). 
 
 6 Brooks v. Walker, 3 La. Ann. 150 (1848). 
 
 « McNorton v. Akers, 24 la. 369 (1868). 
 
 ' Morgan v. State, 12 Ind. 449 (1859). 
 
 8 Sumner v. Cook, 12 Kas. 162 (1873). 
 
 » Ee 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. 1 So as to duties 
 of the register of court before sale. 2 It will be presumed 
 that the court below did " strict justice " to the parties as 
 required by statute. 3 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. 6 The 
 presumption is that evidence admitted by a justice of the 
 peace is legal evidence ; the party alleging error must prove 
 it. 6 A docket entry showing that the jury were " sworn 
 according to law," the presumption is that they were regu- 
 larly sworn. 7 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. 8 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 non-appearance of the defend- 
 ant. 9 Where a writ is duly returned it will be presumed 
 that it was duly served. 10 The law presumes that proper 
 care is taken of official records and files ; u that copies of 
 papers used in the court below were proper copies. 12 "Upon 
 the common presumptions in favor of every judicial trw 
 bunal, acting within its jurisdiction, we must suppose that 
 all persons concerned had due notice." u Where judgment 
 is shown the presumption is that the summons was served 
 
 1 Austin v. Austin, 50 Me. 74 (1862). 
 
 2 Vincent v. Eaves, 1 Mete. 247 (1S58). 
 
 s Grin6tead v. Foote, 26 Miss. 476 (1853). 
 
 * State v. Williamson, 57 Mo. 192 (1874). 
 
 6 Vanderveere v. Gaston, 25 N". J. L. 615 (1856). 
 
 « Smilh v. Williamson, 11 N. J. L. 313 (1830). 
 
 ' Williamson v. Fox, 38 Pa. St. 214 (1861). 
 
 8 Frosh v. Holmes, 8 Tex. 29 (1852) ; Doty v. State, 6 Blackf. 629 (1843). 
 
 » Blinker v. Band, 19 Wis. 254 (1865). 
 io Drake v. Duvenick, 45 Cal. 455 (1873). 
 11 Rice t>. Cunningham, 29 Cal. 492 (1866). 
 J2 Morris v. Ogle, 56 Ga. 692 (1876). 
 u Brown v. Wood, 17 Mass. 68 (1820). 
 
RULE 10. J REGULARITY OF JUDICIAL ACTS. 41 
 
 on the defendant as required by law. 1 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. 3 But injury is presumed from 
 evidence erroneously admitted. 3 
 
 In case IV. it was said: " If any presumption of , law be 
 reasonable, it is that which- favors the regularity 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 the 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 the- 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 Hun, 614 (1874). 
 * Carroll v. Peake, 1 Pet. IS (1828). 
 » Grimes v. Fall, IS Cal. 63 (I860). 
 
42 PRESUMPTIVE EVIDENCE. [EULE 10. 
 
 a judicial tribunal, having 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. * * * We 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- 
 
KTJLE 10.] REGULARITY OF JUDICIAL ACTS. 43 
 
 ber ; and that the testimony was delivered ore terms, though 
 the names of the witnesses in the margin 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 
 support 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." 
 
 I. A judgment Is produced which was confessed before a justice of 
 the peace. The law required that the confession should be entered on 
 t!ie minutes of a docket and the judgment made thereon. The docket is 
 lost. The presumption is that the entry was properly made. 1 
 
 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. 2 
 
 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 this had been done within the time 
 required by statute. The presumption was that it had. 8 
 
 IV. The terms of a police court were by law daily for the transaction 
 of criminal business and on certain specified days for civil business. 
 The record of a criminal case in such court showed only that the trial 
 
 1 Slioer v. Bank of Pittsburg, 16 How. 571 (1853). 
 8 State v. Hinohman. 27 Pa. St. 479 (1856). 
 a Sheldon v. Wright, 7 Barb. 39 (1849). 
 
44 PKESUMFTIVE EVIDENCE. [RULE 10. 
 
 took plase on a day named. The presumption was that tjbie.pourt wag 
 then engaged in the transaction of criminal business. 1 
 
 In 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 m., " 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 was 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 criminal 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." 
 
 i Com. v. Brown, 123 Mass. 110 (1877). 
 
RULE 11.] REGULARITY OF JUDICIAL ACTS. 45 
 
 RtHLE 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 are also limited 
 to jurisdiction over persons within their territorial limits, 
 persons 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 cannot 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. 1 * * * 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." 2 
 
 l 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 those 
 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 the law of 
 nations. Even the Court of King's Bench in England, though a court of general 
 jurisdiction, never imagined that it could serve process in Scotland, Ireland, or the 
 colonies, to compel an appearance or justify a judgment against persons residing 
 therein at the commencement of the suit. This results from the general principle 
 that a court created within and for a particular 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 has chosen to assign this special limit, short of his general 
 authority." 
 
 » (Jalpin v. Page, 18 WaU. 364 (18731. 
 
46 PRESUMPTIVE EVIDENCE. [RULE 12. 
 
 RULE 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 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 summons 
 was 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." * 
 
 i Galpine. Pago, 18 Wall. 364 (1873). 
 
CHAPTEE III. 
 
 THE REGULARITY OF OFFICIAL ACTS. 
 
 RULE 13. — The presumption is that one who Is 
 proved to have acted in an official capacity possessed 
 the necessary and proper authority. 1 
 
 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 
 
 1 The application of this rule is found iu very many cases, involving different 
 powers and duties — as that he was regularly appointed (Eaton v. White, 18 Wis. 518 
 (1861 ;) or elected as required by law. Hathaway v. Addison, 48 Mc. 440 (1860). See 
 Cooper v. Moore, 44 Miss. 386 (1870); Butler v. Ford.l Cr. & M. 663 (1833). In re 
 Murphy, 8 C. & P. 310 (1837), Coleridge, J., said: " With regard to the last objection 
 these trustees are pubic officers. 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) ; K. v. Jones, 2 Camp. 131 (1809) ; Mechanics', 
 etc., Bk. v. Union Bk., 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 his 
 character, without producing his commission or appointment." Jacob i>. United 
 States, 1 Brock. 528 (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 by 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 his commission." Kilpatrick v. Frost, 2 Grant's Cas. 196 (1858) ; Jay v. Carthage, 
 48 Me. 353 (1860) ; Hamlin ». Dungman, 5 Lans. 61 (1871) ; Briggs v. Taylor, 35 Vt. 57 
 (1862) ; Fay v. Richmond, 43 Id. 25 (1870) ; Wilcox v. Smith, 5 Wend. 231 (1830) ; Salter 
 v. Applegate, 23 N. J. (L.) 115 (1851) ; Druse v. Wheeler, 22 Mich. 439 (1871) ; Shelby- 
 ville Trustees v. Town of Shelbyville, 1 Mete. (Ky.) 54 (1S58) ; Landry u. Martin, 15 
 La. 1 (1840) ; Ex parte Strang, 21 Ohio St. 610 (1871) ; Brown v. Connelly, 8 Blackf. 
 390 (1840) ; Com. v. Fowler, 10 Mass. 290 (1813) ; State v. Perkins, 24 N. J. (L.) 409 
 (1S54) j Nelson v. People, 23 N. Y. 293 (1861) ; State v. Hill, 2 Speers, 150 (1843) ; People 
 v. Cook, 8 N. T. 67 (1853) ; Swails v. State, 4 Ind. 517 (1853) ; Woolsey v. Village of 
 Kondout,4 Abb. App. Dec. 639 (1866) ; Delphi School District v. Murray, 53 Cal. 29 
 (1878) ; Goldner v. Bressler, 105 IU. 420 (1883). 
 
 (47) 
 
48 PRESUMPTIVE EVIDENCE. [RULE 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, 1 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, the 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 fbe 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, 0. J., 
 said: <The public who have an interest in the continuous 
 discharge of official duty and whose necessities cannot 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 ol Saline Co. v. Anderson, 20 Kas. 298; 27 Am. Rep. 171 (1873). 
 
RULE 13. J REGULARITY 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, 1 the 
 affairs of society can not be carried on unless confidence were 
 reposed in the official acts of persons de facto in office.' 2 
 And private individuals in controversies between themselves 
 are not permitted to question the acts of an officer de facto, 
 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 capacity. 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 
 the cause of action arose. It is insisted that he can prove that he is an 
 attorney only by a copy of the roll of attorneys. But from proof of his 
 acting as such the presumption arises that he has been duly enrolled. 1 
 
 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 held prima facie evidence that 
 he has been appointed. 6 
 
 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. 6 
 
 V. It is required to justify an act that the defendant has authority, as 
 collector of taxes. Proof that he acted as collector of taxes at the time 
 raises the presumption that he is such officer. 7 
 
 1 2 Barb. 325. 
 
 2 Bcndit v. Auditors of Wayne Co., 20 Mich. 176. 
 » Hutchins u. VanBokkelen, 34 Me. 126 (1852). 
 
 1 Berryman v. Wise, 4 Term Eep. 366 (1791) ; Pearoe v. Whale, 5 B. & C. 38 (1S26). 
 
 » McCJahey v. Alston, 2 M. & W. 206 (1S3S). 
 , « Com. v. McOue, 16 Gray, 226 (1860) ; Briggs v. Taylor, 35 Vt. 57 (1862) ; Druse v. 
 Wheeler, 22 Mich. 439 (1871). 
 
 7 State v. Eoberts, 52 N". H. 492(1872); Ronkcndorff v. Taylor, 4 Pet. 319 (1830); 
 Tuckers. Aiken, 7 N.H. 113 (1851); Faulkner v. Johnson, 11 M. & W. 581 (1843). 
 
 i 
 
"50 PRESUMPTIVE EVIDENCE. [RULE 13. 
 
 VI. In an action of ejectmentthe question arises whether 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 flat 
 in bankruptcy. A flat purporting to be issued by a master by virtue of such 
 authority is proved to have been issued. The master has often issued 
 similar fiats. 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 enlisting money from B., who is proved to be a soldier. The 
 presumption is that B. is an " attested soldier" within the statute. 3 
 
 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. 4 
 
 X. B. is indicted for embezzling a letter, he being an officer of the 
 post-office. Proof that B. acted as an officer of the post-office is prima 
 facie sufficient. 5 
 
 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. 6 
 
 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. 7 
 
 XIII. A. appears in court, or commences an action as attorney for B. 
 The presumption is that A. had authority from B. 8 
 
 In easel, it was said that the evidence introduced (viz., that 
 A. had performed certain acts as lieutenant), must be deemed 
 
 1 Bowley v. Barnes, 8 Q. B. 1037 (1846). 
 
 2 Marshall v. Toms, 5 Q. B. 115 (1843). 
 
 * Walton v. Gavin, 16 Q. B. 48 (1850). 
 
 4 Hex v. Verelst, 3 Camp. 432 (1813). So held of a commissioner lor taking affi- 
 davits in R. v. Howard, 1 Moo. & Rob. 187 (1832). 
 » R. v. Rees, 6 0. & P. G06 (1834). 
 
 * Woolsey v. Village of Rondout, 4 Abb. App. Dec. 639 (1866). 
 j r Conolly v. Riley, 25 Md. 402 (1866). 
 
 * Osborn v. U. S. Bank, 9 Wheat. 738; McAlexander v. Wright, 3 T. B. Mon. 189; 
 Bridgoton v. Bennett, 23 Mo. 420; Penobscot Boon Co. v. Lamson, 16 Mo. 224; Field 
 v. Proprietors, 1 Cush. 11 ; Gaul v. Grout, 1 Cow. 113 ; Rogers v. Park, 4 Hum;ih . 480 ; 
 Reynolds v. Fleming, 3Q Kas. 106 (1SS3); Leslie v. Fisher, 62 111. 118; Tally v. 
 Reynolds, 1 Ark. 99; Aaderson v. Sutton, 2 Duv. 480 (1866). 
 
RULE 13. J REGULARITY OF OFFICIAL ACTS. 51 
 
 sufficient to show that he was a lieutenant de facto and that 
 he was duly qualified by taking the oath required by law, 
 " such appointment and qualification are 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 §o. 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 prima facie 
 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 PRESUMPTIVE EVIDENCE. [RULE 13. 
 
 that a 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. Felloius, 1 the court say : " Formerly attor- 
 
 1 28 N. H. 304. 
 
RULE 14. J REGULARITY OF OFFICIAL ACTS. 53 
 
 neys were required to be appointed by warrant and to file 
 their powers in court, but that practice has long since been 
 disused, and a mere parol retainer is sufficient. 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. Ho-Yo-Po-Nubby, 1 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 the law and their duty requires them. 2 
 
 Illustrations. 
 
 I. The action is against a carrier for two cases of cutlasses received, 
 to be transported from England to a foreign country. The defense is 
 
 1 27 Miss. 567. " 
 
 2 McDonald v. Nelson, 2 Cow. 139; 14 Am. Dec. 43 (1823) ; Farr v. Sims, Eich. Eq. 
 Oases, 122; 24 Am. Dec. 396 (1832) ; Terry v. Bleight, 3 T. B. Mon. 270; 16 Am. Dec. 
 101 (1826). Alabama — Holleman v. De Myse, 51 Ala. 95 (1874); State Auditor v. 
 Jackson County, 65 Ala. 142 (1880) ; Perry County v. R. Co., Id. 391 (1880) ; Dudley v. 
 Chilton Co., 66 Ala. 594 (1880) ; Harvey v. Thorpe, 23 Ala. 251 (1856) ; Brandon «. Snows, 
 2 Stew. (Ala.) 255 (1830). Arkansas — Budd v. Bettison, 21 Ark. 583 (1860). Cali- 
 fornia—Den v. Den, 6 Oal. 81 (1856) ; Egery v. Buchanan, 5 Cal. 53 (1855) ; Palmer 
 v. Baling, 8 Cal. 385 (1857) ; Curtis v. Herrick, 14 Cal. 117 (1859) ; Hart v. Burnett, 15 
 Cal. 530 (1860) ; Guy v. Washburn, 23 Cal. Ill (1863) ; Hagar v. Supervisors, 47 Cal. 
 222 (1874); Baldwins. Bordheimer, 48 Cal. 433 (1S74) ; Weaver v. Fairchild, 50 Cal. 
 360 (1875) ; People v. Smith, 59 Cal. 365 (1881) ; Upham v. Hoskins, 62 Cal. 250 (1882). 
 But see Keane v. Cannovan, 21 Cal. 291 (1863). Connecticut — Booth i>. Booth, 7 
 Conn. 350 (1829) ; West School Dist. v. Merrills, 12 Conn. 437 (1S3S) ; Cone v. City of 
 
54 PRESUMPTIVE EVIDENCE. [RULE 14. 
 
 made that cutlasses are prohibited from being exported without a 
 license. It being proved that they were entered at the custom-house,* the 
 license is presumed. 1 
 
 II. It is the duty of an officer to mate certain entries in books. The 
 books with such entries signed with his name are produced. The pre- 
 sumption is that he made them. 2 
 
 Hartford, 28 Conn. 363 (1859). Florida — Dupnis v. Thompson, 16 Fla. 70 (1877). 
 Georgia — Jefferson v. Mayor, 7 Ga. 181 (1849) ; Craig v. Adair, 22 Ga. 373 (1867); 
 Pausch v. Guerrard, 67 Ga. 319 (1881) ; Boberts v. Cook, 68 Ga. 325 (1882) ; Healey v. 
 Dean, 68 Ga. 514 (1882). Illinois — Conwell v. Watkins, 71 111. 489 (1874); Gilbraith 
 v. Littiech, 73 111. 209 (1874) ; Garden City Ins. Co. v. Stayart, 79 111. 259 (1875) ; Bal- 
 lance v. Underbill, i 111. 453 (1842) ; Glanoy v. Elliott, 14 111. 456 (1853) ; Buckmaster 
 v. Job, 15 111. 329 (1853) ; Dunlop v. Daugherty, 20 111. 397 (1858) ; Dyer a. Flint, 21 111. 
 80 (1859) ; Hives v. Kumler, 27 111. 291 (1862) ; Todemier v. Aspinwall, 43 111. 401 
 (1S67) ; Rosenthal v. Renick, 44 111. 202 (1867). Indiana — Smith v. Stewart, 5 laid 
 220 (1854) ; State v. Carter, 6 Ind. 37 (1854) ; Culberfcson v. Milhollin, 22 Ind. 362 (1864) ; 
 Feaster v. Woodfill, 23 Ind. 493 (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 (1S74). Iowa- 
 Cobb v. Newcomb, 7 Iowa, 43 (1858) ; State v. Cress, 10 Iowa, 101 (1859) ; Doilarhide 
 v. Muscatine Co., 1 G. Greene. 158 (1848) ; Eowan v. Lamb, 4 G. Greene, 468 (1854). 
 Kentucky — Ellis v. Carr, 1 Bush, 527 (1866); Phelps v. Eateliffe, 3 Bush, 334 (1867); 
 Warfield v. Brand, 13 Bush, 77 (1877) ; Buckner v. Bush, 1 Duv. 394 (1864) ; Hickman 
 v. Boffman, Hardin, 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). L ou i s . 
 iana— Dunlap v. Sims, 2 La. Ann. 237 (1847) ; Hewitt v. Stephens, 5 La. Ann. 640 
 (1850) ; Re Lauve, 6 La. Ann. 530 (1851) ; City of New 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 ». Gottschalk, 15 La. Ann. 376 (1860) ; Templeton 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 (1866) ; O'Hara v. Blood, 27 La. Ann. 57 (1876) ; 
 Tunstall v. Parish of Madison, 30 La. Ann. 471 (1878) ; Rayne v. Terrell, 33 La. Ann. 
 812 (1881). Massachusetts — Pratt v. Lamson, 6 Allen, 457 (1863); Blanchard v. 
 Young, 11 Cush. 341 (1853) ; Bruce v. Holden, 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. v. Bruce, 6 Md. 457 (1854). Mich- 
 igan — Hourtienne v. Schnoor, 33 Mich. 274 (1876) ; Supervisors of Houghton Co. v. 
 Rees, 34 Mich. 481 (1876) ; Perkins v. Nugent, 45 Mich. 156 (1881) ; Cooper v. Gran- 
 berry, 33 Mich. 117 (1857) ; 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. 363 
 (1S53) ; Nebbett v. Cunningham, 27 Miss. 292 (1854) ; Harris v. McKissack, 34 Miss. 
 170 (1857) ; 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, 63 Mo. 523 (1876); Henry v. Dulle, 74 Mo. 443 (1881). Nebraska — Tecumseh 
 Town Site Case, 3 Neb. 284 (1S74). New Hampshire — Wheelock v. nail. 3 N. H. 
 310 (1826) ; Sias v. Badger, 6 N. H. 393 (1833) ; Wells v. Burbank; 17 N. H. 393 (1845) ; 
 
 1 Van Omeron v. Doweck, 2 Camp. 44 (1S09). 
 
 2 Taylor v. Cook, 8 Price, 653 (1820). 
 
RULE 14. J REGULARITY OP OFFICIAL ACTS. 55 
 
 III. The charter of a municipal corporation requires unanimity in the 
 mayor and counsel in passing an ordinance. An ordinance is alleged to 
 have been " duly made by the mayor and council." The presumption is 
 that it was made by a unanimous vote. 1 
 
 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. 2 
 
 Thornton v. Campton, 18 N. H. 27 (1845) ; State v. Alstead, 18 N. H. 59 (1846) ; Kim- 
 ball v. Lamprey, 19 N. H. 215 (1848) ; Scammon v. Scammon, 28 N. H. 419 (1854) ; 
 Gordon v. Noma, 29 N. H. 198 (1854). New York— Supervisors of Livingston v. 
 White, 30 Barb. 72 (1859); Atty.-Gen. ,>. Reformed Protestant Dutch Church, 33 
 Barb. 303 (1861) ; People v. PhOBnix Bk., 4 Bosw. 364 (1859) ; Arent v. Squire, 1 Daly, 
 347 (1863) ; Wood v. Terry, 4 Lans. 80 (1871) ; Rector, etc., of Trinity Church v. Hig- 
 gins, 4 Robt. 1 (1866) ; Brewster v. Striker, 2 N. Y. 19 (184S) ; Leland v. Cameron, 31 
 N. T. 115 (1865) ; People v. Snyder, 41 N. T. 397 (1869) ; Smith v. Hill, 22 Barb. 656 
 (1856). North Carolina— State v. Lamon, 3 Hawks, 175 (1824) ; Eawls v. Deans, 4 
 Hawks, 299 (1826). Ohio — Ward v. Barrows, 2 Ohio St. 241 (1853). Oregon— Den- 
 nison v. Story, 1 Oregon, 272 (1859) ; Dolph v. Barney, 5 Oregon, 191 (1874). Penn- 
 sylvania—Cuttle v. Brockway, 24 Pa. St. 145 (1851) ; City of Alleghany v. Nelson, 
 25 Pa. St. 332 (1855) ; Lytle v. Colts, 27 Pa. St. 193 (1856) ; Huzzard v. Trego, 35 Pa. St. 
 9 (1859) ; Kelly v. Creen, 53 Pa. St. 303 (1866) ; Lackawanna Iron Co. v. Falcs, 55 Pa. 
 St. 90 (1867) ; Pittsburg v. Walter, 69 Pa. St. 365 (1871) ; Leedom v. Lombaert, 80 Pa. St. 
 381 (1876). South Carolina— Ex parte Hanks, 1 Cheves (S. C.) , 203 (1840) ; Boulware 
 v. Witherspoon, 7 Rich. (Eq.) 450 (1855) ; Douglass v. Owens, 5 Rich. (L.) 534 (1852) ; 
 State v. Hatcher, 11 Rich. (L.) 525 (1858) ; State v. Harden, 11 S. C. 360 (1878) ; Alston 
 «/. Alston, 4 S. C. 116 (1872). Tennessee —Woods v. State, 6 Baxt. 426 (1873) ; Davis 
 v. State, 6 Baxt. 429 (1873) ; Webb v. Fritz, 8 Baxt. 218 (1874) ; Chapman v. Howard, 3 
 Lea, 363 (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 (1853) ; 
 Reid v. Reid, 11 Tex. 585 (1854) ; Sadler v. Anderson, 17 Tex. 248 (1856) ; Baker v. 
 Coe, 20 Tex. 429 (1857) ; Jones v. Muisbach, 26 Tex. 235 (1862) ; Willis 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 v. 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 v. Flowers, 16 Wis. 110 (1862) ; Williams v. Troop, 17 Wis. 463 (1863) ; Mills v. 
 Johnson, 17 Wis. 598 (1863) ; Edson v. Hayden, 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 Ot. of CI. 276 
 (1878) ; Dunlop v. Munroe, 1 Cranch C. C. 537 (1809) ; U. S. v. Carberry, 2 Cranch C. C. 
 358 (1822) ; Winter ». Simonton, 3 Cranch C. C. 104 (1827) ; Den v. Hill, McAll. 480 
 (1859) ; Rnggles v. Bucknor, 1 Paine, 358 (1824) ; The Eureka Case, 4 Sawy. 302 (1877) ; 
 U. S. v. Earhart, 4 Sawy. 245 (1877) ; Wilkes v. Dinsman, 7 How. 89 (1S49) ; Minter v. 
 Cro-nmelin, 18 How. 87 (1855) ; Delassus v. U. S. 9 Pet. 118 (1835) ; Strother v. Lucas, 
 12 Pet. 410 (1838). 
 
 i City of Louisville v. Hyatt, 2 B. Mon. 180 (1841). 
 
 2 Mussey v. White, 3 Me. 200 (1825). That the acts of the officers of a municipal 
 corporation are presumed to be regular, see Bassett v. Porter, 10 Cush. 418 (1852) ; 
 Spurr v. Bartholomew, 2 Mete. 479 (1841). As that a proprietory meeting was con- 
 vened as required by law, Society v. Young, 2 N. H. 310 (1820) ; Copp v. Lamb, 12 Me. 
 312 (1835) ; Inhabitants v. Root, 18 Pick. 318 (1836) ; Cobleigh v. Young, 15 N. H. 493, 
 (1844). And compare Clark v. Ward well, 55 Me. 61 (1867). 
 
56 PKESUMPTIVE EVIDENCE. [RULE 14. 
 
 V. A petition in bankruptcy is verified by an affidavit sworn to before 
 the clerk of a United St*ates court. Such clerks are not authorized to 
 take affidavits out of court. The presumption is that the affidavit was 
 made in court. 1 
 
 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 j ustice 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. 2 
 
 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. 3 
 
 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. 4 
 
 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. 5 
 
 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 served 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. 6 
 
 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 Schermorhorn v. Talman, 14 N. Y. 93 (1858). 
 
 a Forsaith v. Clark, 21 ST. H. 409 (1850) ; Willis v. Lewis, 28 Tex. 185 (1856) ; Titus o. 
 Kimbro, 8 Id. 210 (1852). 
 
 s Jackson «. Shafer, 11 Johns. 317. 
 
 * Hartwell v. Eoot, 19 Johns. 348 (3822) ; 10 Am. Deo. 233 (1S22). 
 6 State v. Lawson, 14 Ark. 114 (1S53). 
 
 • Stubbs v. Leavltt, 30 Ala. 352 (1657). 
 1 Bruce v. Nicopulo, 11 Ex. 129 (1855). 
 
 » King v. Whiston, 4 A<\. & Ell. 667 (1836). 
 
BULB 14. J REGULARITY OF OFFICIAL ACTS 57 
 
 XIII. Certain proceedings of a municipal corporation are alleged to 
 have taken place at an adjourned meeting. The presumption is that the 
 meeting was properly and regularly adjourned. 1 
 
 XIV. A docket fee has been taxed by the officers of a court. The pre- 
 sumption is that this was legal. 2 
 
 XV. The presumption is that a clerk issues an execution only under 
 the direction of some person authorized to control the writ. 5 
 
 XVI. One of the 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 officer is not dated. 
 The presumption is that it was served within the legal time. 5 
 
 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. 6 
 
 XIX. A clerk in making a transcript of a record for the Supreme 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 that this was a representation of 
 the notary's official and not his private seal. 7 
 
 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. 8 
 
 XXI. There is no place of service mentioned in a constable's return. 
 The presumption is that it is within his precinct. 9 
 
 XXII. A. is a public surveyor regularly appointed. The presumption 
 is that he has a knowledge of the art of surveying. 10 
 
 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 in favor of the 
 recorder. 11 
 
 1 Freeholders v. State, 24 N. J. (L.) 71S (1853). 
 
 2 Governor v. Ridgway, 12 111. 14 (1SS0). 
 
 s Niantio Bank v. Dennis, 37 111. 381 (1805). 
 
 4 Durkins v. Moore, 17 Ga. 62 (1855) ; Higufleld v. Phelps, 50 Ga. 59 (1874). 
 
 6 Eeid v. Jordon, 56 Ga. 282 (1876). 
 
 « Ingram v. Ingram, 4 Jones (L.), 188 (1S56) 
 
 1 Moore v. Titman, 33 111. 358 (1864). 
 
 s Conwell v. Watkins, 71 111. 488 (1874). 
 
 • Richardson v. Smith, 1 Allen, 541 (1861). 
 
 10 Ashe v. Lanham, 5 Ind. 434 (1854). 
 
 11 Vandereook v. Baker, 48 Iowa, 199 (1878). 
 
58 PRESUMPTIVE EVIDENCE. [RULE 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. 1 
 
 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. 2 
 
 XXVI. An executor makes oath that all legal taxes due by the deceased 
 have been paid by him since he qualified as executor, but can not swear 
 as to taxes before the death of the testator. The presumption is that 
 they also have been paid. 3 
 
 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. 5 So verbal 
 changes were made in a constitution after it was reported by 
 the revising committee. These are presumed to have been 
 authorized. 6 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, 7 and generally a statute is presumed to be con- 
 stitutional, 8 and so a municipal ordinance is presumed to be 
 regular. 9 
 
 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 o. Heaney, 70 111. 268 (1873). 
 
 s Mercer v. Doe, 6 Ind. 80 (1854) ; Evans v. Ashby, 22 Ind. 15 (1864), and see Bank's 
 V. Bales, 16 Ind. 423 (1861) ; Piel v. Brayer, 30 lnd. 332 (1868). 
 
 a Aikin v. Altoona Iron Works, 43 Ga. 464 (1871). 
 
 * Supervisors ol Schuyler Co. v. People, 25 111. 183 (1860) ; Illinois Cent. E. Co. v. 
 Wren, 43 111. 77 (1867). 
 
 6 Bedard v. Hall, 44 111. 91 (1867). 
 
 » Walsh v. City Council, 67 Ga. 293 (1881). 
 
 i Miller v. Southwestern R. Co., 55 Ga. 143 (1875). 
 
 s South., etc.. E. Co. v. Morris, 65 Ala. 197 (18S0) ; Sadler v. Langham, 34 Ala. 311; 
 Allison v. Thomas, 44 Ga. 649 (1872). 
 
 » Van Hook v. City ol Selma, 70 Ala. 361 (1881). 
 
RULE 14. J REGULARITY OF OFFICIAL ACTS. 59 
 
 admitted to probate." 1 " We must presume," it is said 
 in another case, " that all alterations or interlineations 
 made or appearing in a public record were done in a proper 
 manner by the person having the 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." 2 And in another, "When notices, affi- 
 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." a 
 
 In another case it is said: "We hold it to be a sound 
 principle, supported by both justice and reason that when 
 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." 4 
 
 In case I. Lord Ellenborough said that if it was proved 
 that these cutlasses were entered at the custom-house, he 
 would presume omnia rife acta. 
 
 " We are of opinion," it was said in case III., " that the 
 order as exhibited should prima 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 degree be accredited as regular 
 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 
 
 l Thursby v. Myers, 57 Ga. 155 (1876). 
 
 a Hommel v. Devinney, 39 Mich. 522 (1878). 
 
 3 nail v. Kellogg. 16 Mich. 135 ; Morrill v. Douglass, 14 Kas. 304 (1875). 
 
 * Marshall v. Stevens, 8 Humph. 159 ; 47 Am. Deo. 601 (1847). 
 
60 PEESUMPTIVE EVIDENCE. [RULE 14. 
 
 made by the unanimous vote of the mayor and councilmen 
 in council." 
 
 In case XIII. it was said : "lam 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. 1 
 
 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 in Rules 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. 2 
 
 II. An action is brought against the maker of a note made to a cor- 
 poration indorsed to the plaintiff " G. H. F., president." The presump- 
 tion is that the indorser had authority to make the indorsement. 3 
 
 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. 260. 
 s Bank of the United States v. Dandridge, 12 Wheat. 64 (1827). 
 8 Cabot v. Given, 45 Me. 144 (185S). And see Stevenson ■>. Hoy, 43 Pa. St. 191 
 (1862) ; Seeds v. Kahler, 76 Id. 263 (1874). 
 * Billiard v. Gould, 34 N. H. 230 (1856). 
 
RULE 14.] REGULARITY - OF OFFICIAL ACTS. 61 
 
 IV. A complaint is filed in court in the name of a State and signed by 
 certain attorneys . The presumption is that they had the authority of the 
 Governor to do so. 1 
 
 V. A suit is brought in the name of a corporation. Its assent is pre- 
 sumed. 2 
 
 VI. The seal of a corporation is affixed to a contract produced. The 
 presumption is that this was done by authority. 3 
 
 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 an 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. 4 
 
 In case I. Mr. Justice Story has given an exhaustive 
 review of this 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 maxim, 
 omnia prossumunter rite et solemnitur esse acta donee probe- 
 tur in contrarium. 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 
 
 i Alexander «. State, 56 Ga. 478 (1876). 
 
 s Bangor, etc., E. Co. v. Smith, 47 Me. 45 (1859). 
 
 » Solomon's Lodge v. Montroolin, 58 Ga. 517 (1877). So the presumption is that 
 a quorum of members were present at a business meeting of a corporation. Citizen 
 Mut. Ins. Co. v. Sortwcll, 8 Allen, 217 (1S64). 
 
 4 Gregory v. Brooks, 37 Conn. 365 (1870). 
 
62 PRESUMPTIVE EVIDENCE. [RULE 14. 
 
 intended, and that deeds and grants have been accepted, 
 which 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 
 presumed ; 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 
 
EULE 14. J EEGULARITY OF OFFICIAL ACTS. 63 
 
 has the custody of the records, and before a court in 
 another State, so that there is no compulsory process 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 the policy of insurance 
 as president for which the note was given, only one month 
 before it was transferred ; and no annual meeting 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 by-laws ex officio 
 treasurer ; and so he had the legal custody of the assets." 
 
 "The question in this case," it was said in case VII., 
 •'is not simply whether the defendant acted improperly, 
 or without strict legal right, or even maliciously, but 
 whether he was actuated in making and enforcing 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 case does not furnish any such 
 proof on which a jury could properly find a verdict, nor' 
 
64 PKESUMPTIVE EVIDENCE. [KULE 14. 
 
 in our opinion would the evidence have been sufficient, 
 if the plaintiff had shown that the relations between him 
 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 26th 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, de jure 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.] EEGULAEIT? OF OFFICIAL ACTS. 65 
 
 The object and purpose of his order appeared upon its face. 
 It was a reasonable and proper order under the circum- 
 stances, and one which it appertained to his office to give. 
 The brig had already 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 safely, 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 
 
66 PKESUMPTIVE EVIDENCE. [kULE 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 plaintiff was 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." 
 
CHAPTBE IY. 
 
 THE KEGULARITY OF BUSINESS AND UNOFFICIAL 
 
 ACTS. 
 
 RULE 15 . — In commercial transactions the presumption 
 is that the 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 prcBsumuntur 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." L 
 
 Illustrations. 
 
 I. In an action against the acceptor of several bills of exchange which 
 were made in November, 1850, and became due on February 6th, and 
 March 12th, 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. 2 
 
 II. It is alleged in a bill for relief that a certain agreement was in 
 writing. The presumption is that it was signed. 3 
 
 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. 6 
 
 1 Avery v. Bowden, 6 E. & B. 973 (1356) ; Brownell v. Palmer, 22 Conn. 121 (18S2). 
 
 " Boberts v. Bethell, 12 C. B. 779 (1852). 
 
 » Bist v. Hobeon, 1 Sim. & Stu. 513 (1824). 
 
 * Farrar v. Beswiok, 1 Moo. & E. 627 (1836) ; Brewers. Browne, 68 Ala. 210 (1880). 
 " Where there are two or more persons acting as partners, the presumption is that 
 they are equal in interest in the business engaged in, and the property owned by 
 them in the firm name." Moore v. Bare, 11 Iowa, 198 (1860). 
 
 s Dana v. Kemble, 19 Pick. 112 (1837). 
 
 (67) 
 
68 PRESUMPTIVE EVIDENCE. [RULE 15. 
 
 V. Parties conduct a business together. The presumption is that they 
 are partners. 1 
 
 VI. 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. 2 
 
 VII. The question is whether L. was a partner in a certain firm. 
 Letters are produced written by L. in the name of the firm, and entries 
 made by him in the firm books. This raises a presumption that he was. 3 
 
 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 firm.* 
 
 IX. Notes and accounts past due are received by an attorney. The 
 presumption is that he receives them for collection. 5 
 
 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. 8 
 
 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 which to pay it. 9 
 
 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. 10 
 
 XV. Freight is earned by a vessel. It is presumed to belong to the 
 owners of the vessel. 11 
 
 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. 13 
 
 l McMullan v. Mackenzie, 2 G. Greene, 368 (1849) ; and see Ferris i>. Kilmer, 47 
 Barb. 411 (1866). 
 
 s Davis v. Fish, 1 G. Greene (la.), 406; 48 Am. Dec. 387 (1848) ; and see Minor v. 
 Edwards, 12 Mo. 137; 49 Am. Dec. 121 (1848). The waiver of the State's power to tax 
 is never presumed. Battle v. Mobile, 9 Ala. 234; 44 Am. Dec. 438 (1846) ; Mayor of 
 Baltimore v. Baltimore, etc., E. Co., 6 Gill, 2b8; 48 Am. Deo. 530 (1848). 
 
 a Lewis v. Post, 1 Ala. 05 (1S40). 
 
 * Jonestf. Rives, 3 Ala. 13 (1841). 
 
 * Mardisu. Shackleford, 4 Ala. 493 (1842). 
 
 « Kouten v. Bostwick, 69 Ala. 300 (1877) ; Desha v. Smith, 20 Ala. 747. 
 » Roberts v. "Wilcoxson, 36 Ark. 364 (1S80). 
 e Swift «. Swift, 46 Cal. 267 (1873). 
 
 * Trego v. Lowrey, 8 Neb. 238 (1879) ; Kendall v. Galvin, 15 Me. 131 ; 32 Am. Dec. 
 141 (1838). 
 
 1" Jones v. Vestry of Trinity Church, 19 Fed. Rep. 69 (18S3). 
 11 Williams v. Insurance Co., 1 Hilt. 345 (1857). 
 " Clarke v. Magruder, 2 H. & J. 77 (1807). 
 
RULE 15.] BUSINESS AND UNOFFICIAL ACTS. 69 
 
 XVII. A. sells goods to B. on credit. The presumption is that A. 
 believed B. to be solvent at the time of the sale. 1 
 
 XVIII. A. and B. are in business together. The presumption is that 
 the partnership is solvent. 2 
 
 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. 3 
 
 XX. The question is whether B. is insolvent. A creditor cannot 
 collect his debt from B. This raises a presumption of his insolvency. 4 
 
 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. 5 
 
 XXII. Two persons sign a note. The presumption is that they are 
 equally bound. 6 
 
 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-mark. The pre- 
 sumption is that it has been through the mail. 8 
 
 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 $00 for which he receives f 1,600. The presump- 
 tion is that damages from risk of fire from the company's engines are 
 included in the price, 10 
 
 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. 11 
 
 XXVIII. Two persons 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. 12 
 
 1 O'Brien v. Norris, 16 Md. 122 (1860). "The presumption both of law and of 
 reapon, in the absence of proof to the contrary is that when they sold the goods on 
 a credit they believed the purchaser to be solvent and able to pay for them." 
 
 2 Wallace v. Hull, 2S Ga. 68 (1859). 
 
 3 Ansley v. Carlos, 9 Ala. 979 (1846) ; Lawson v. Orear, 7 Ala. 784 (1844) ; Keynolds 
 v. Pharr, 9 Ala. 5G0 (1846); Beesonu. Wiley,28 Ala. 575 (1856). 
 
 * Bilberry v. Mobley, 20 Ala. 200 (1852). 
 « New Haven County Bk. v. Mitchell, 15 Conn. 206 (1842). 
 « Orvisv Newell, 17 Conn. 97 (1845). 
 ' Lucas v. Brooks, 23 La. Ann. 117 (1871). 
 « U. S. v. Noelke, 17 Blatchf. 554 (18S0). 
 o Northrup v. Trask, 39 Wis. 515 (1876). 
 ™ Kood v. New York, etc., E. Co., 18 Barb. 80 (1854). 
 
 11 Newsom v. Davis, 20 Tex. 425 (1857). 
 
 12 Stroud v. Casey, 27 Pa. St. 471 (1856). 
 
70 PRESUMPTIVE EVIDENCE. [RULE 15. 
 
 XXIX. Certain bank notes are proved to pass currently in the com- 
 munity. The presumption is that they are genuine. 1 
 
 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. 2 
 
 XXXI. A merchant renders an account to a customer. The customer 
 keeps it without objection. The presumption is that it is correct. 3 
 
 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. 5 
 
 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 drawing of 
 them. * * * I decide this case upon this broad ground, 
 
 1 Hummell v. State, 17 Ohio St. 628 (1867). There is no presumption that a hond 
 executed in Virginia during the 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). 
 
 2 Ashe v. De Rosset, 8 Jones (L.) 240 (I860); 
 s Webb v. Chambers, 3 Ired. (L.) 374 (1843). 
 * Hall v. Holden, 116 Mass. 172 (1874). 
 
 6 Stoddard v. Burton, 41 Iowa, 682 (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- 
 burna. Averill, 30 Me. 310; 50 Am. Dec. 630 (1849). When a note is indorsed in blank, 
 the presumption is that holder purchased it immediately from payee. Peaslee v. 
 Robbins, 3 Mote. 164 (1S11). The drawee of a check is presumed to know the signa- 
 ture of the drawer. Redington D.Woods, 45Cal.406 (1873). "If the defendant signed 
 the check and it came into the bands of a bona fide holder, the presumption of 
 law was that it was issued by the drawer, unless, the contrary was shown by him." 
 Hoyt v. Seeley, IS Conn. 359 (1847). 
 
RULE 15.] BUSINESS AND UNOFFICIAL ACTS. 71 
 
 that wo are to presume, unless the contrary is shown, that 
 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 twenty-one, 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 which 
 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 PRESUMPTIVE EVIDENCE. [RULE 15. 
 
 which has long lain dormant. 1 So non-user of a patent 
 " amounts to a very strong presumption as to the invention 
 not being useful." 2 So notice is presumed. 8 
 
 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). 
 
 Illustrations. 
 
 A 
 
 I. A person takes some bank bills to a bankerto be exchanged forgolcl, 
 and the banker, after examining them, buys them from him at a 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 
 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 may be 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. 5 
 
 " 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) ; Sibbering e. Earl ol Balcarras, 3 DeG. & 
 Sm. 735 (1860). 
 
 i In re Bakewell's Patent, 15 Moore P. C. 385 (1862). 
 
 8 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. Des Arts, 2 Barb. Ch. 636 (1848) 
 
RULE 15.] BUSINESS AND UNOFFICIAL ACTS. 73 
 
 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." 
 
 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. 1 
 
 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 by it. a 
 
 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. 3 
 
 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- 
 missed until the end of it. Both A. and B. are presumed to know this 
 custom. 4 
 
 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. 5 
 
 i Sutton v. Tatham, 10 Ad. & Ell. 27; Bayliffe v. Butterworth, 1 Ex. 25. 
 
 => MoAlister v. Keab, 4 Wtnd. 483, 8 Id. 109;.Meech v. Smith, 7 Id. 315. 
 
 3 Mills v. Bank oi U. S., 11 Wheat. 431; Renner v. Bank of Columbia, 9 Id. 5S2; 
 Bank of Washington v. Triplett, 1 Pet. 25 ; Yeaton v. Bank of Alexandria, 5 Cranch, 
 9; Smith u. Whiting, 12 Mass. 6; Dorchester, etc., Bank v. New England Bank, 1 
 Oush. 177. 
 
 * Given v. Charron, 15 Md. 502, and see Lyon v. George, 44 Md. 295. 
 
 6 Pittsburg v. O'Xeil, 1 Penn. St. 343; Rindskoff v. Barrett, 14 Iowa, 101; Beatty 
 v. Gregory, 17 Id. 109; Toledo, etc., Insurance Oo. v. Speares, 16 Ind. 52; Grant v. 
 Lexington Fire Insurance Co., 5 Id.23; Barrett v. Williamson, 4 McLean, 589; Greaves 
 v. Legg, 11 Ex. 642; 2 H. & N. 210. In a New York case Forger, J., said; " There are 
 
74 PEESUMPTITE EVIDENCE. [RULE 15. 
 
 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 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. 1 
 
 Sub-Rule 2. — An agreement to pay for services rendered 
 and accepted is presumed^ A) unless tkeparties are mem- 
 bers of the same family or near relatives(B) . 
 
 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 them.' 
 
 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 tee, 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 
 principal nor 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 not excuse him." Walls v. Bailey, 49 N. T. 464. 
 
 1 Miller v. Burke, 68 N. T. 625; Flymi v. Murphy, 2 E. D. Smith, 878; Farmers, 
 etc., Bank v. Sprague, 62 N. Y. 605; Pierpont v. Fowle, 2 Woodb. & M. 23; Smith «. 
 Gibbs, 44 N. II. 335. 
 
 ^ In re Scott, 1 Kedf. (ST. T.) 234 (1847) ; and see Burr v. Williams, 23 Ark. 244 
 (1861), as to goods furnished. 
 
RULE 15. J BUSINESS AND UNOFFICIAL ACTS. 75 
 
 In case I. it was said: "As regards the 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 competent, 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. 1 
 
 II. A step-father assumes the parental relation toward B., an infant, 
 the child of his wife by aformer husband. On the other hand 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. 2 
 
 III. The brother of A. after A.'s death presents a claim for services for 
 a period of five years. During this time he was boarded and clothed by 
 A. There is no presumption of an agreement to pay him for these ser- 
 vices. 3 
 
 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. 5 
 
 VI. B. being out of employment 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. 6 
 
 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 (1867). 
 
 2 Williams v. Hutchinson, 3 N. Y. 312 (1850) ; Andrus v. Foster, 17 Vt. 656 (1845). 
 
 8 Bowen v. Bowen, 2 BradJ. 336 (1853) ; Robinson v. Cnshman, 2 Denio, 149; Fitch 
 v. Peckham, 16 Vt. 150 (1844) ; Weir v. Weir, 3 B. Mon. 645 (1843). 
 * Davies v. Dayies, 9 C. & V. 87 (1839). 
 
 6 Kin? v. Kelly, 28 Ind. 89 (1867) ; Oauble v. Eyan, 26 Id. 207. 
 e Gallagher v. Vaught, 8 Hun, 87 (1876). 
 
76 PRESUMPTIVE ETIDENCE. [PULE 15. 
 
 the value of his services. It is a conclusion to which the 
 mind readily comes from a knowledge of the circumstances 
 of the particular case, and the ordinary dealings between 
 man and man. 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, 
 although 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. * * * The defendant's wife and the plain- 
 tiff's mother are cousins. * * * They were not, 
 therefore, related at all, except by affinity, 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 
 
RULE 15.] BUSINESS AND UNOFFICIAL ACTS. 77 
 
 promise by reason of the existence of the family rela- 
 tion. * » * "We do not think that the relation between 
 the parties to this action was such as would prevent the law 
 from implying an agreement to pay for services rendered." 
 
 Sub-Rule 3. — Negotiable paper is presumed to have been 
 regularly 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(IS). 
 
 Illustrations. 
 
 A. 
 
 I. A. is the holder of a promissory note. The presumption is that he 
 is a bona fide holder for value received. 2 
 
 1 The legal presumption is that every promissory note was given in the course of 
 business and for value and that it is to be paid by the maker as the primary debtor. 
 Bank of Orleans v. Barry, 1 Denio, 116 (1845) ; Miller v. Molntyre, 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." Loomisr. Mowry,8Hun,311 (1876); 
 Woodworth v. Huntoon, 40 111. 131 (1865) ; Curtiss v. Martin, 20 Id. 657 (1858) ; Kelley 
 v. Ford, 4 la. 140; Trustees v. Hill, 12 Id. 462 ; Wilkinson v. Sargent, 9 Id. 521 ; Lathrop 
 v. Donaldson, 22 Id. 235 (1867) ; Canal Bank v. Templeton, 20 La. Ann. 141 (186S) ; 
 Scott v. Williamson, 24 Me. 343 (1844) ; Burnham v. Webster, 19 Id. 232 (1841) ; Ear- 
 bee v. Wolfe, 9 Port. 366 (1839) ; 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. Bidwell, 13 M. & W. 76 ; Harvey v. Towers, 6 Ga. 660 ; Fitch v. 
 Jones, 5 El. & B. 238 ; Catlin v. Hansen, 1 Duer, 323 ; Gwin v. Lee, 1 Md. Ch. 445 ; 
 Munro v. Cooper, 5 Pick. 412; Sistermans v. Field, 9 Gray, 332 (1867) ; Tucker v. Mor- 
 rill, 1 Allen, 528 (1861) ; Beltzhover v. Blackstock, 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. 609 (1854) ; Paton v. Coit, 6 Mich. 505 (1858) ; Clark v. Pease, 
 41 N. H. 414; Garland v. Lane, 46 Id. 245; Perkins v. Prout, 47 Id. 389 (1867) ; Farm- 
 ers', etc., Bank v. Noxon, 45 N. Y. 762 (187 1) ; Nickerson v. Einger, 76 N. Y. 279 (1879) ; 
 Sperry v. Spalding, 45 Cal. 344 (1873). In Alabama want of consideration, like fraud 
 casts the burden on the holder. Wallace v. Bank, 1 Ala. 567; Marston v. Forward, 
 5 Id. 347; Thompson v. Armstrong, 7 Id. 256; Boyd v. Mclver, 11 Id. 822 (1874) ; Boss 
 v. Dunham, 35 Id. 434 (1S60). 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 plaintiff is not called upon to prove that he 
 gave value for the bill." Whitakerc. Edmunds, 1 M. & E., 1 Ad. & Ell. 638, overruling 
 Thomas v. Newton, 2 0. & P. 606, and Heath v Sanson, 2 B. & Ad. 291. And see Eob- 
 inson v. Eeynolds, 2 Q. B. 634; Bailey v. Bidwell, 13 M. & W. 72; Berry v. Alderman, 
 14 C. B. 95 ; Smith v. Brame, 16 Q. B. 244. And the same rule is followed in most of 
 the States. Holme v. Karpser, 5 Binney, 465 ; Knight v. Pugh, i W. & S. 445 ; Morton 
 v. Rogers, 14 Wend. 576; Rogers v. Morton, 12 Id.4Si; Vather v. Zane, 6 Gralt.246; 
 Wilsonn. 'Lazier, 11 Gratt. 477; Tacker v. Morrill, 1 Allen, 628 (1861). 
 
 2 Goodman v. Simonds, 20 How. 343 (1857); Lehman v. Tallahassee Manfg. Co., 64 
 Ala. 567 (1879) ; First Nat. Bank v. Green, 43 N. Y. 298 (1871). 
 
78 PRESUMPTIVE EVIDENCE. [EULE 15. 
 
 II. In an action on a promissory note by the holder against the indorser, 
 it is not alleged that the plaintiff is a holder for value. This is pre- 
 sumed. 1 
 
 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. 3 
 
 " 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 absence of 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 II. 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 (1862) ; Poorman ». Millls, 35 Cal. 118 (1868). 
 
 2 Noxon v. De Wolf, 10 Gray, 343 (1858). In Ranger v. Cary, 1 Mete. 309, it was 
 said: "A negotiable note being offered in evidence duly indorsed, the legal pre- 
 sumption ie that such indorsement was made at the date ol the note, or at least 
 antecedently to its becoming due ; and if the defendant would avail himself of any 
 defense that would be open to him 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 the note was overdue." Stevens v. Bruce, 21 Pick. 193 ; Webster v. Lee, 5 Mass. 
 634; Hendricks v. Judah, 1 Johns. 319. 
 
 sMobley v. Ryan, 14 111. 51 (1852); Pettis v. Westlake, 3 Scam. 635; Walker v. 
 Davis, 33 Me. 616 (1851); McDowell v. Goldsmith, 6 Md. 319 (1854); Hopkins v. Kent, 
 17 Id. 117 (1860). 
 
HULE 15.] BUSINESS AND UNOFFICIAL ACTS. 7*9 
 
 the law raises for the protection and support of negotiable 
 paper." 
 
 In case III. it was said: "In Parkin v. Moore, 1 it 
 was held by Baron Alderson that the burden of prov- 
 ing 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 the note. 
 In .this sense the burden was upon the defendants." 
 
 B. 
 
 I. In an action on a bill of exchange 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 ou 
 the plaintiff. 2 
 
 II. In answer to an action on a promissory note the defendant pleads 
 that it was illegal in its inception and that the plaintiff took it without 
 value. The illegality is proved. The burden is cast on the plaintiff to 
 show value. 5 
 
 III. A check on a bank is given by S. to C, for a gaming debt. It is 
 transferred to F., who brings suit on it against S. The burden is upon 
 F. to prove that he took it bona fide and for value. 4 
 
 ^O, &P. 408. 
 
 1 Ross v. Drinkard, 35 Ala. 434 (1860) ; Boyd v. Mclver, 11 Id. 822 (1847.) 
 
 8 Bailey v. Bldwell, 13 M. & Vf. 74 (1844). 
 
 4 Fuller v. Uuicbms, 10 Cal. 523 (1858). 
 
80 PRESUMPTIVE EVIDENCE. [RULE 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 IT. 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 HI., "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 good 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 
 
EULE 17. J BUSINESS ANci UNOFFICIAL ACTS. 81 
 
 given more as an evidence of indebtedness by the maker to 
 the payee." J 
 
 RULE 16. — 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. 3 
 
 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 them. 9 
 
 "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." 
 
 RULE 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 Beall v. Leaverett, 32 Ga. 105 (1861). 
 
 2 Gibson v. Doeg, 2 H. & N. 615 (1857). 
 
 o Jffpran v. Weiler, 41 Penn. St. 470 (1862). 
 6 
 
82 PRESUMPTIVE EVIDENCE. [RULE 18. 
 
 the clerk on his promise that C. ■will pay A. In an action by A. against 
 C. no presumption arises that the clerk communicated his bargain 
 to C. 1 
 
 "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 prcesum- 
 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." 
 
 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. 2 
 
 Elustrations. 
 
 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. 3 
 
 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 (1859). 
 
 2 Freeman v. Thayer, 33 Me. 76 (1851); Munroe v. Gates, 48 Id. 463 (1860); see 
 Stevens v. Tafft, 3 Gray, 487 (1856) ; Sadler v. Anderson, 17 Tex. 245 (1856) ; Diehl v. 
 Emig, 65 Penn. St. 327 (1870) ; Eoberts v. Pillow, 1 Hempst. 634 (1851) ; Ke British, 
 etc., Assurance Co., 1 DeU., J. & S. 4S8 (1863) ; Lane's Case, Id. 504. 
 
 3 Crisp v. Anderson, 1 Stark. 35 (1815). "Am I to presume that this agreement 
 is unstamped in favor 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 contrary appears." Per Ellenborough, C. J., and see Closmadeuo 
 v. Carrel, 18 C. B. 36 (1856) ; Pooley v. Goodwin, 4 Ad. & Ell. 94 (1836) ; Hart v. Hart 
 1 Hare, 1(1841). , 
 
EULE 18. J 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 so when indorsed to plain- 
 tiff. The presumption is that it was so stamped at the time of the 
 transfer. 1 
 
 III. An action of ejectment is brought on an assignment of a term 
 to secure the payment of an annuity. A statute required that such 
 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. 3 
 
 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 delivered. 5 
 
 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. 6 
 
 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 se*ls," and had a seal at the time of 
 the trial. The presumption is that there was a seal when executed. 7 
 
 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. 8 
 
 X. Two deeds bear date on the same day. A priority of execution 
 will be presumed to bear out the clear intention of the parties. 9 
 
 1 Bradlangh ». DeKen, L. R. 3 C. P. 286 (1868), and see Marine Investment Co. v. 
 Haviside, L. R. 5 H. L. Cas. 624(1872) where Lord Cairns said: " I take it to be 
 clear that if an instrument is lost, and if there should be no evidence given respect- 
 ingit 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 instrument was prop- 
 erlystamped." 
 
 2 Griffin v. Mason, 3 Camp. 7 (1811). 
 
 s Thayer v. Barney, 12 Minn. 513 (1867) ; Smith v. Jordan. 13 Id. 264 (1868)). 
 
 * Re Sandilands, L. E. 6 C. P. 411 (1871). 
 
 6 Hall v. Bainbridge, 12 Q. B. 699 (1848). 
 
 o Burling v. Patterson, 9 C. & P. 570 (1840). 
 
 i Ball v. Taylor, 1 C. & P. 417 (1824). 
 
 > Grellier v. Neale, 1 Peake, 199 (1818) ; Talbot v. Hodson, 7 Taunt. 251 (1816) ; Re 
 Huckvale, L. R. 1 P. & D. 375 (1867) ; Adam v. Kerr, 1 B. & P. 360; Andrews v. Mot- 
 ley, 12 C. B. (N. s.) 526; Vermicombe v. Butler, 3 Sw. & T. 580; Spellsburg v. Bur- 
 dett, 10 Bl. &F. 840. 
 
 9 Atkyns v. Horde, 1 Burr. 106 (1757) 
 
84 PRESUMPTIVE EVIDENCE. [kTJLE 18. 
 
 XI. Property is conveyed by lease and release in one deed. Priority 
 of execution of the lease will be presumed. 1 
 
 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. 2 
 
 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 first. The presumption 
 is that they were made in proper order. 4 
 
 XV. A deed is made to A. and B. jointly. The presumption is that 
 they are equally interested. 6 
 
 XVI. A warehouseman's receipt and guaranty indorsed thereon are pro- 
 duced. The presumption is that they were executed at the same time. 6 
 
 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. 8 
 
 XIX. A deed is duly attested. The presumption is that it was duly 
 
 delivered. 9 
 
 « 
 
 XX. A consideration in a deed is not expressed. It is presumed to be 
 the value in money of the property. 10 
 
 XXI. A plaintiff declares on a certain contract which the statute 
 requires to be in writing. The presumption is that it is in writing. 11 
 
 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. 12 
 
 I Barker v. Keets, 1 Frecm. 251 (1678) ; Brice v. Smith, Welles, 1 (1737). 
 = Maverick v. Austin, 1 Bailey, 59 (1828). 
 
 a Godfrey v. Disbrow, Walk. (Mich.) 260 (1843). 
 
 « Dudley v. Cadwell, 19 Conn. 219 (1848). But see Bissell v. Nooney, 33 Conn. 441 
 (1866). 
 
 6 Long©. McDougald, 23 Ala. 413 (1853). 
 
 ° Underwood v. Hossack, 38 111. 208 (1865). 
 
 » Smiley v. Fries, 104 111. 416 (1882) ; People v. Snyder, 41 N. Y. 397 (1869) ; Deininger 
 v. McConnell, 41 111. 227 (1866) ; Hardin v. Crate, 78 111. 533 (1876). 
 
 8 Stall v. Fulton, 30 N. J. (L.) 430 (1863). " If the whole of certain premises are 
 conveyed for a given price, the necessary presumption is that some portion of that 
 prico is paid and received for every portion of the premises." Nutting v. Herbert, 
 37 N. H. 350 (1858). 
 
 » Powers v. Russell, 13 Pick. 69 (1832). 
 
 1° Clements v. Landman, 26 Ga. 401 (1858). 
 
 II Gibbs v. Nash, 4 Barb. 449 (1848) ; Coles v. Bowne, 10 Paige, 626 (1844). 
 I 2 Printup v. Johnson, 19Ga. 75 (1S56). 
 
EULB 18. J BUSINESS AND UNOFFICIAL ACTS. 85 
 
 XXIII. There is no proof whether the signature of the maker of a deed 
 or the subscribing witness was made first. The presumption is that the 
 maker signed it first. 1 
 
 XXIV. A mortgage is executed on land in B. It is presumed to have 
 been executed in the place where the land is situated. 2 
 
 XXV. Real estate is sold by A. and B. jointly, and A. receives all the 
 proceeds. The presumption is that A. and B. are joint owners, and 
 that one-half the proceeds belongs to each. 3 
 
 XXVI. It is uncertain whether a mortgage was paid before, at, or 
 after the 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 " 8 " 
 includes all the land between " 7 " and " 9." 6 
 
 " It would be very inconvenient," it was said in case II., 
 " 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 by 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 Ellenborough 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 prima 
 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 certifi- 
 
 1 Hughes v. Debnam, 8 Jones (L.), 129 (1860). 
 
 2 Thayer©. Marsh, 11 Hun, 501 (1877). 
 
 8 Adams ». Leavens, 20 Conn. 73 (1849). 
 
 * Johnson v. Carpenter, 7 Minn. 176 (1862). 
 
 6 Warren v. Pierce, 6 Me. 1 (1829) ; 19 Am. Deo. 189. 
 
86 PKESUMPTIVE 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 
 means of a seal ; it may be 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." 1 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- 
 
 i Ward v. Lewis, 4 Pick, 518 (1827). 
 
RULE 18.] BUSINESS AND UNOFFICIAL ACTS. 87 
 
 tween the parties, under which partition it has been thus 
 held and enjoyed. 1 
 
 " 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." 2 
 
 In case XXII. it was said: "The bill is silent as to 
 whether the agreement 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 in 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 eight, in the first range east 
 in Baldwin, the plan of the town is lost, there is no ques- 
 tion about the range lines, between which 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. He 
 would have been justified in using stronger language ; and 
 in stating that eight did and must extend from seven to 
 nine, unless a different original location could be shown. 
 
 1 Russell v. Marks, 3 Mete. (Ky.) 37 (1860) ; Munroe v. Gates. 48 Me. 463 (1860). 
 3 Hill v. Lord, 48 Me. 463 (1861) ; Bond v. Searrell, 3 Burr. 1773 (1764). 
 
88 PRESUMPTIVE EVIDENCE. [RULE 18. 
 
 The burden of proof is doubtless upon the plaintiffs 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, eight 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." 
 
KULE 18. J BUSINESS AND UNOFFICIAL ACTS. 89 
 
 Sub-Rule 1. — Dates are presumed to be correct, tvlten 
 found in written instruments (A), but 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 that time except their 
 date. The presumption is that they were written at the time they bore 
 date. 1 
 
 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. 2 
 
 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. 3 
 
 IV. 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. 5 
 
 VI. A deed is dated April 3d. The presumption is that it was exe- 
 cuted on that day. 6 
 
 VII. A note is dated July 1, 1874. 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. 8 
 
 1 Potez v. Glossop, 2 Ex. 192 (1848) ; Sinclair v. Baggaley, 4M.&W. 312; Malr.as 
 v. Clement, 19 L. J. (Q. B.) 435 (1850) ; Butler v. Monntgarret, 7 H. L. Cas. 647 (1859) ; 
 Morgan v. Whitmore, 6 Ex. 713 (1851) ; Baker v. Melburn, 2 M. & W. 853 (1837) ; Hunt 
 v. Massey, 1 B. & Ad. 902 (1834) ; Pullen v. Hutchinson, 25 Me. 249 (1845) ; Meldrum v. 
 Clark, Morris (la.), 130 (1841) ; Abrams v. Pomeroy, 13 111. 133 (1851) ; Williams v. 
 Woods, 16 Md.220 (1860) ; Breck v. Cole, 4 Sandf. 80 (1850). 
 
 2 Anderson t>. Weston, 6 Bing. (X. C.) 296 (1840) ; Laws v. Ranrt, 3 C. B. (*f. s.) 
 445 (1857) ; Claridge v. Kleet, 15 Pa. St. 255 (1850). An exception exists in the English 
 courts in the case of proof of a petitioning creditor's debt in bankruptcy proceed- 
 ings. Wright v. Lawson, 2 M. & W. 739 (1837). 
 
 » Caldwell i>. Gamble, 4 Watts, 292 (1835). 
 
 4 Costigan ». Gould, 5 Denio, 290 (1848) ; Fallen ». Hutchinson, 25 Me. 242 
 (1815). 
 
 <> Smith v. Battens, 1 Moo. & R. 341 (1834). 
 6 Smith®. Porter, 10 Gray, 66 (1857). 
 ' Knisely v. Sampson, 100 III. 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. 1 
 
 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. 2 
 
 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. 3 
 
 XII. An action is on a promissory note. The writ is dated April 15, 
 18S4, 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. 4 
 
 XIII. A written paper containing a statement of mutual accounts 
 between a creditor and a bankrupt by whom it was signed, and bearing 
 date previous to the bankruptcy shows a balance due to the creditor. 
 This is prima fade evidence as against the assignees in an action brought 
 by them against the creditor that it was written at the time it bore date.' 
 
 XIV. 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. 6 
 
 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 time," said Taunton, J., in case V., "I have 
 no doubt, if the indorsements were not written at the time 
 
 1 Hntchins v. Flintgc, 2 Tex. 473 (1849). 
 a Benthall v. Judkins, 13 Mete. 265 (1847). 
 
 3 Federhen v. Smith, 3 Allen, 119 (1861) ; Bunker v. Shed, 8 Mete. 160 (1844) ; Lyle 
 v. Bradford, 7 T. B. Mon. 116 (1828) ; Day v. Lamb, 7 Vt. 426 (1835). But it is not con- 
 clusive. 
 
 4 Gardner v. Webber, 17 Pick. 407 (1835). 
 
 6 Sinclair v. Baggaley, 4 M. & W. 312 (1838). 
 Houliston v. Smyth, 2 C. & P. 24 (1825). 
 
EUI,E 18. J BUSINESS AND UNOFFICIAL 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 ought 
 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 depend 
 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 prcesumuntur rite 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 is 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 Abingersaid: "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 PRESUMPTIVE EVIDENCE. [RULE 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 
 yet been held, or even contended, that where a paper is 
 adduced in evidence against a bankrupt or his assignee, the 
 document itself is not prima 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 the 9th of No- 
 vember, 1829. A promissory note dated Baltimore, November 9, 1829, 
 and signed by G., is produced. This does not raise a presumption that 
 G. was in Baltimore on that day. 1 
 
 i Given v. Albert, 5 W. & S. 333 (1843). 
 
CHAPTEE Y. 
 
 THE PRESUMPTION 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 (A), and not fraudulently 1 (B), illegally 2 (C), or 
 wickedly. 8 
 
 Illustrations. 
 
 A. 
 
 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. 6 
 
 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. 6 
 
 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.' 
 
 i Thus, a party alleging fraud must prove it. Gntzweiler v. Lackman, 39 Mo. 91 
 ) ; Blaisdell v. Cowell, 14 Me. 370 (1837) ; Inhabitants of New Portland v. Inhab- 
 itants of Kingsfleld, 55 Me. 172 (1867) ; Beeves v. Dougherty, 7 Yerg, 222 (1834) ; 
 Paxton v. Boyoe, 1 Tex. 317 (1846) ; Ex parte Knowles, 2 Cranch C. C. 676 (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) ; Watkyns v. Watkyns, 2 Atk. 97 (1740). 
 
 2 Cummings v. Stone, 13 Mich. 70 (1864) ; Gassett v. Godfrey, 26 N. H. 415 (1853) ; 
 Farmers', etc., Bk. ». Detroit, etc., E. Co., 17 Wis. 372 (1863) ; Howard v. Boorman, 
 17 Wis/459 (1863). 
 
 a Kenton County Ct. v. Bank Lick Turnpike Co., 10 Bush, 529 (1874) ; Long v. 
 State, 46 Ind. 582 (1874) ; Chapman v. Moll wrath, 77 Mo. 44 (1882) ; Cross v. Brown, 41 
 N. H. 289 (1860) ; Richards v. Kountze, 4 Neb. 209 (1876) ; Gay v. Bidwell, 7 Mich. 519 
 (1859) ; Habersham v. Hopkins, 4 Strobb. (S. C.) 239 (1850) ; Russell v. Baptist Theo- 
 logical Union, 73 111. 337 (1874). 
 
 < Post v. Post, 70 111. 484 (1873) ; Cope ». Pearee, 7 Gill, 263 (1848). 
 
 6 Armstrong v. Hodges, 2 B. Mon. 70 (1841). 
 
 e Blanchard v. Lambert, 43 Iowa, 228 (1876). 
 
 ' Blanchard v. Lambert, 43 Iowa, 228 (1876) ; Tates v. Houston, 3 Tex. 433 (1848) ; 
 Carroll ». Carroll, 20 Tex. 731 (1858) ; Fenton v. Reed, 4 Johns. 51; Rose v. Clark, 8 
 Page, 573 ; Jackson v. Clark, IS Johns. 347. 
 
 (93). 
 
94 PRESUMPTIVE EVIDENCE. [RULE 19. 
 
 V. A. being under the legal age, contracts a marriage with B.;the 
 marriage is void. When A. comes of age, B. is on her death-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. 1 
 
 VI. 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 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. 2 
 
 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. 3 
 
 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 on 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 will be presumed that the visits, for which he charges, 
 w.ere necessary. 5 
 
 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. 6 
 
 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 he has 
 committed perjury.' 
 
 XII. 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. 8 
 
 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. 9 
 
 1 Wilkinson v. Payne, 4T. E. 468 (1791). 
 
 2 Sichel v. Lambert, 15 C. B. (n. S.) 781 (1864). 
 a Williams v. East India Co., 3 Bast, 104 (1802). 
 4 Carson v. Central R. Co., 35 Cal. 325 (1868). 
 
 <■ Todd v. Myers, 40 Cal. 355 (1S70). 
 
 « King v. Hawkins, 10 East, 211, (1809). 
 
 ' Hewlett v. Hewlett, 4 Edw. (N. T.) 7 (1839). 
 
 * Lavender v. Hodgens, 32 Ark. 764 (1878). 
 
 Savier v. Cbipnian, 1 Mich. 116 (184S). 
 
RULE 19.] INNOCENCE IN CIVIL CASES. 95 
 
 XIV. Both parties to a suit testify to matters within the knowledge 
 of both. Material evidence of one is not contradicted by the other. It 
 is presumed to be true. 1 
 
 XV. The question is whether A. was divorced from B., A. having sub- 
 sequently married C. A. testifies 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. 2 
 
 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 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." 
 
 In case II., the presumption is that the parties were not 
 married, because if they were, they were guilty of violating 
 the express words of a penal statute. 
 
 " We have here," said Keating, J., in case VI., " 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 VII. that to compel A. to prove the 
 want of notice was compelling him to prove a negative 
 
 1 Matthews i/. Lanier, S3 Ark. 91 (1S78). A. swears that on a certain day he 
 deposited some money with B. B. swears that he did not. The veracity oi neither 
 is impeached. The presumption of truth is in favor of A. Hepburn v. Citizens 
 Bank, 2 La. Ann. E05 (1817). 
 
 2 Eo Edwards, 58 Iowa, 431 (18S2). 
 
96 PRESUMPTIVE EVIDENCE. [PULE 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 
 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 
 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 1869, 
 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 regular order. Judgments or 
 
RULE 19. J INNOCENCE 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 repeatedly, 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 
 house 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, we 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 
 indulged that a divorce had been obtained, and the defend- 
 ant lawfully contracted the marriage with Baker. The 
 
 7 
 
98 PRESUMPTIVE 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." 
 
 JB. 
 
 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. 1 
 
 II. A person makes a deed of land. The presumption is that he was 
 seized of the land at the time. 2 
 
 III. 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 L. F.'s order being lost, the question is which was given first. The 
 presumption is that the order in favor of L. was. 3 
 
 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. 4 
 
 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." Held, 
 proper. 5 
 
 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. 6 
 
 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 that it came properly into 
 his hands." Nichols v. Alsop, 10 Conn. 263 (1834). 
 
 2 Bolsters. Cushman, 34 Me. 428 (1852). 
 
 8 James River, etc., Co. v. Littlejohn, is Gratt. 53 (1867) ; Littlejohn v. Ferguson, Id. 
 * Oaks D. Harrison, 24 Iowa, 179 (1867) ; Burton v. Mason, 26 Iowa, 392 (1868) ; 
 Leighton v. Orr, 44 Iowa, 680 (1876) . 
 
 » Hatch v. Bayley, 12 Cush. (Mass.) 27 (1853)-. 
 
 6 Patee v. Pelton, 48 Vt. 182 (1876) ; and see Hibbard v. Mill, 46 Vt. 243 (1873). 
 
EULE 19. J INNOCENCE 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 infer- 
 ence that he fraudulently placed his receipt among the testator's papers. 1 
 
 VIII. A mortgage Is alleged fraudulent. The burden of showing this 
 to be so is on the complainant. 2 
 
 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. 3 
 
 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 wouldhave been an act of folly as well as a 
 fraud in E. 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 Story, delivering 
 the judgment of the Supreme Court in another case, 4 " 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 time during which the fraud has been success- 
 
 1 CarroU v. Quynn, 13 Md. 379 (1858). 
 
 s Trice v. Gover, 40 Md. 102 (1874). 
 
 s Gee v. Hicks, Eich. (S. C.) Eq. Cas. 5 (1831). 
 
 1 r-revost v. Gratz, 6 Wheat. (U. S.) 481 (1S21) ; 1 Pet. C. C. 364 (1816). 
 
100 PRESUMPTIVE EVIDENCE. [RULE 19. 
 
 fully concealed and practiced is rather an aggravation of 
 the offense and calls more loudly upon a court of equity to 
 grant ample and decisive relief. But length of time neces- 
 sarily 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 
 beyond a reasonable doubt." 
 
 But fraud may be inferred from circumstances. In 
 Morford v. Peck, 1 the 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 ]\ivj, and requires explanation to the 
 effect that the law in its charitable estimate of human 
 
 1 46 Conn. 331 (1878.) 
 
KULE 19.] INNOCENCE IN 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 proved 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 " for " 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 "in," 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 
 data from which it may be legally deduced. But ' to presume ' 
 is from the Latin procsumere,. 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. 1 
 
 1 Trott v. Irish, 1 Allen, 481 (1861) ; Hewes v. Platta, 12 Gray, 143 (1858) ; Stebbins 
 v. Leowolf, 1 Oush. 137 (1849) ; Kidder v. Norris, 18 N. H. 532 (1847). 
 
102 PRESUMPTIVE EVIDENCE. [PULE 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. 1 
 
 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. 3 
 
 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. 6 
 Thus it is shown simply that a vessel took fire. Here no 
 presumption" arises that the fire was the result of any neg- 
 ligence. 6 So seaworthiness in a vessel is presumed. 7 But 
 if she is lost without stress of weather or without sustain- 
 ing damages from danger of the seas, unseaworthiness is 
 presumed. 8 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 was negligently made or used. 8 Or a blast 
 
 1 Sutphen «. Cushman, 35 III. 187 (1864). 
 
 2 Sidney v. Sidney, 3 P. Wms. 270 (1734) ; Clark v. Periam, 3 P. Wma. 334 (1741) ; 
 Scholes v. Hilton, 10 M. & W. 15 (1842). 
 
 8 Timson v. Moulton, 3 Cush. 269 (1849). 
 * Johnson v. Farwell, 7 Me. 370 (1831). 
 
 & Linsday v. Connecticut, etc., B. Co., 27 Vt. 643 (1854). 
 
 « The Buckeye, 7 Biss. 23 (1863). 
 
 ' Martin v. Fishing Ins. Co. , 20 Pick. 389 ; 32 Am. Dec. 220 ; Lunt v. Boston Marine 
 Ins. Co., 6 Fed. Eep. 568; Werk v. Leathers, 1 Woods, 272. 
 
 s Snethen v. Memphis Ins. Co., 3 La. Ann. 474; 48 Am. Dec. 462 (1848) ; Patrick v. 
 Hallett, 1 Johns. 246 ; Talcot v. Commercial Ins. Co. , 2 Johns. 129 ; Miller v. Ins. Co., 
 2McCord. (S.C) 336; 13 Am. Dec. 734 (1823); Dupeyre v. Western Ins. Co., 2 Rob. 
 (La.) 457; 38 Am. Dec. 465 (1848) ;Prescott v. Union Ins. Co.,lWhart. (Pa.) 399;30Am. 
 Dec. 206 (1836). That a carrier received goods in good order is presumed. Breed v. 
 Mitchell, 48 Ga. 533 (1873) . 
 
 9 Illinois Cent. K. Co. v. Phillips, 49 111. 234; Illinois Cent. E. Co. v. Houck, 72 III. 
 2S5 (1874). 
 
RULE 19.] INNOCENCE IN CIVIL CASES. 103 
 
 explosion injures a horse. The presumption is that it (the 
 blast) was not properly covered. 1 Or an animal is killed 
 by a railroad locomotive on the track. The presumption is 
 that it was negligently killed. 2 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. 3 
 
 1 THrich v. McCabe, 1 Hilt. 251 (1856). 
 
 " Little Kook, etc., E. Co. u. Finley, 37 Ark. 562 (1881) ; Little Eock, etc., E. Co., 
 v. Henson, 38 Ark. 415 (1882). 
 
 a Georgia E. Co. v. Willia, 28 Ga. 317 (1859) ; Georgia E. Co. v. Monroe, 49 Ga. 373 
 (1873). 
 
CHAPTEK VI. 
 
 THE PEESUMPTIONS OF MAEEIAGE AND LEGITIMACY. 
 
 RULE 20. — Marriage (A) or filiation (parentage) (B) may 
 be presumed. 
 
 A. 
 
 In Cargile v. Wood, 1 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 being 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 proof 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.' 2 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. 695 (1797). 
 
 2 1 Bish. Mar. and Div. (5th ed.), sec. 438. 
 
 (104) 
 
RULE 20. J MARRIAGE AND LEGITIMACY. 105 
 
 good sense in the Scotch law, by which cohabitation alone is 
 considered insufficient, and which requires in addition habit 
 and repute, because it is said the 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 presumption 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 which 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 
 
1G6 PRESUMPTIVE EVIDENCE. [RULE 20. 
 
 a combination of facts 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. 1 
 
 Sub-Rule 1. — The law presumes the validity of a mar- 
 riage ceremony 2 ^, and that every person is legitimate 
 (B). 
 
 Illustrations 
 
 A. 
 
 I. Parties appear at a church and the minister publicly and in the 
 presence of others performs a ceremony of marriage between them, 
 and they afterwards regard themselves as married. 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. 3 
 
 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 (1864) ; Barnum v. Barnum, 42 Md. 253 (1875). In Blackburn v. Crawford, 3 
 Wall. 175 (1865) , the court Instructed 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 pre- 
 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 be true, and yet no marriage 
 have occurred, and the children all be illegitimate." 
 
 2 Harrod v. Harrod, 1K.4J.4 (1854) ; Fleming v. Fleming, 4 Bing. 266 (1827); 
 Sichel v. Lambert, 16 C. B. (n. s.) 782 (1864). 
 
 a People v. Calder, 30 Mich. 85 (1874) ; Fleming v. People, 27 N. Y. 329, and see 
 State v. Kean, 10 N. H. 347 (1839). 
 
RULE 21. J MARRIAGE AND LEGITIMACY. 107 
 
 The presumption in connection with other circumstances, is that the 
 marriage was legal. 1 
 
 In case II. it was said : "I think that having regard to 
 the general rule which applies to all cases of presumption, 
 omnia rite acta praesumuntur, 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 
 presumption, 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." 
 
 I. A., claiming as the heir of B., seeks to recover from C. property of 
 B. It is proved that A. is B.'s child. 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 prima 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. 2 
 
 1 Harrison v. Mayor, i DeG. M. & G. 153 (1S53) . 
 
 2 Strode v. Magowan, 2 Bush, 637 (1865). And where a man speafcs ol a child of 
 his as his " daughter," the presumption is that she is legitimate. Gaines v. New 
 Orleans, 6 Wall. 690 (1867). And see Gaines v. Herman, 2i How. 553 (1S60). 
 
108 PRESUMPTIVE EVIDENCE. [UTJLE 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 
 dissolution 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. 1 
 
 Illustration. 
 
 I. A woman was divorced from her husband July 11, 1865. On March 
 7, 1866, she gave birth to a child. The presumption is that the former 
 husband was the father. 2 
 
 In accordance with the maxim pater est quern nupticz 
 demonstrat the rule is the same where the child is horn in 
 wedlock, whether begotten before or after the marriage; 3 
 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 acknowledging 
 by a most solemn act that the child is his. 4 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. 815 (1874) ; Herring v. Goodaon, 43 Miss. 392 (1870) ; Eemlngton v. 
 Lewie, 8 B. Mon. 611 (1848) ; State v. Worthingham, 23 Minn. 528 (1877) ; Bowles 
 v. Bingham, 3 Mnnf. 599 (1811) ; Patterson v. Gaines, 6 How. 550 (1848) ; Caugolle v. 
 Feme, 23 N. Y. 90 (1861) ; Senser v. Bower, 1 Penn. 450 (1830) ; Dinkins «. Samuels, 
 lOEich. (L.) 70 (1856). 
 
 2 Drennan v. Douglass, 102 Ul. 345 (1882). And see State v. Bomaine, 68 Iowa, 46 
 (1882). That the child was born eight months after the marriage does not overcome 
 the presumption. Phillips v. Allen, 2 Allen, 453 (1861) . 
 
 » Dennison v. Page, 29 Pa. St. 420 (1857). See dissenting of opinion of Lowrie, 
 J., in Page v. Dennison, 1 Grant's Cas. 379 (1859) ; E. v. Luff, 8 East. 198; State v. 
 Herman, 13 Ired. (L.) 502 (1852) ; State v. Wilson, 10 Ired. (L.) 131 ; Montgomery v. 
 Montgomery, 3 Barb. Ch. 132 (1848) ; Bowles v. Bingham, 2 Munf. 442 (18S1) ; 3 Munf., 
 appendix. In Montgomery v. Montgomery, 3 Barb. Ch. 132 (1848) , it was held that the 
 admission of a third party that a child born after the marriage, but begotten before, 
 was his child and not that of the subsequent husband was not sufficient to rebut the 
 presumption. 
 
 <S,«, Luff, 8 Bast, 198; State v. Herman, 13 Ired. (L.) 503 (1852). 
 
EULE 21.] MAEEIAGE AND LEGITIMACY. 109 
 
 the corner stone, the very foundation on which rests the 
 whole fabric of human society; and if you allow it once 
 to be shaken, there is no saying what consequence may fol- 
 low." 1 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. 2 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 that 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 
 previous ; 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 
 reigns, 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. 8 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 Eoutlege v. Carruthers, Nicholas Adult. Bast. 161. 
 
 2 E. v. Murray, 1 Salk. 122; E. v. Allerton, 1 Ld. Bay. 122. 
 
 » In riettesham v. Julian, Tear Book, 7 Hen. IV. 9, decided in the seventh year 
 Of the reign of Henry IV., Eickliil) , J., said : " Cestui John fuit deins la mere Tissue 
 f uit mulier— f or who that bulleth my cow the oalf is mine." The judicial language 
 of that day 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, 
 Tour father's wife did after wedlock bear him ; 
 And if she did play false the fault was hers, 
 Which fault lies on the hazards of all husbands 
 That marry wives. Tell me, how if my brother 
 Who, as you say, took pains to get this son 
 Had of your father claimed this son for bis? 
 In sooth, good friend, your father might have kept 
 This calf, bred from his cow, from all the world." 
 
 King John, Act I., Sceue I. 
 
110 PRESUMPTIVE EVIDENCE. [RULE 21. 
 
 v. Luffed Lord Ellenborough laid it down that the illegiti- 
 macy of the child might be shown where the legitimacy 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 Foxcraffs Case 2 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. 8 (5. ) 
 Where the impossibility was based on the laws of nature. 
 An example of this division is found in Whisterlo's case, 4 
 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 overcome the presumption of legitimacy, for the 
 color would be inferred as being derived from the mother. 5 
 Finally, in Pendrell v. Pendrell, 6 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 staying 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. 7 
 
 1 8 East, 207. 
 
 2 1 Roll. Abr. 
 
 s See E. v. Allerton, 1 L<J. Ray. 395. 
 
 4 Cited in Cross v. Cross, 3 Paige Ch. 139. 
 
 & Illinois Loan Co. v. Bonner, 75 111. 315 (1874). 
 
 • 2 Strange, 925. 
 
 i Ana see Goodright v. Saul, 4 Term Rep. 358. 
 
RULE 21. J MARRIAGE AXD LEGITIMACY. Ill 
 
 In Hargrave v. Hargrave, 1 Lord Langdale laid it down 
 that the presumption that a child born of a married woman 
 is legitimate may be rebutted by showing that 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 presumption 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. 2 
 
 In Head v. Head, 3 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 w®man 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 quatuor 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 
 
 > 9 Beav. 255(1846). 
 
 ' Answer of the judges to the seventh question in the Banbury Peerage, 1 Sim. 
 &Stu. 157(1811). 
 
 > ISim.&Stu. 150(1823). 
 
112 PKESUMPTIVE EVIDENCE. [eULE 21. 
 
 to exclude all doubt ; and when the judges in the Banbury 
 Case spoke of satisfactory evidence upon this subject they 
 must be understood to have meant such evidence as would 
 be satisfactory, 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. 2 
 
 "If sexual intercourse is proved," said the chancellor 
 in Morris v. Davis, 3 "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 (1S11) ; Wright v. Holdgate, 3 0. & K. 158 (1850). 
 
 2 Banbury Peerage, 1 Sim. & Stu. 159 (1811). Said Lord Eldon in the Banbury 
 Peerage (see 5 01. & F. 25G) : "Lord Hale, 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 in 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 opportunities of having sexual intercourse." Alderson, B., 
 in Cope v. Cope, 1 M. & Kob. 275 (1833). "Access is such access as affords an oppor- 
 tunity of sexual intercourse." Bury v. Philpot, 2 Myl. & K. 349 (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. Hargrave, 9 Beav. 225 (1846). 
 
 8 5 01. & F. 243 (1837). 
 
EOLE 21.] MARRIAGE AND LEGITIMACY. 113 
 
 is most likely to have been the father. 1 The law does 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. 2 So, where the husband has had intercourse 
 or even " access," the bad reputation of the wife, either 
 before or after the marriage, does not overthrow the pre- 
 sumption. 8 Neither is the fact that the wife was living in 
 adultery. 4 In S. v. Inhabitants of Mansfield, 5 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 residing at the time the children were begotten." 
 
 © © 
 
 In Berry v. Philpot, 6 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 was held that they must be declared 
 legitimate. "Access," said the master, " if it is such access 
 
 1 Alderson, B., in Cope v. Cope, 1 M. & Rob. 275 (1833). 
 
 2 Hemmenway v. Towner, 1 Allen, 209 (18G1). 
 8 Phillips v. Allen, 2 Allen, 453 (1861). 
 
 4 Oases ante, and Cross v. Cross, 3 Paige Ch. 139; 23 Am. Dec. 778 (1832). 
 
 6 1Q. B.444 (1841). 
 
 « 2 Myl. & K. 349 (1834). 
 
114 PRESUMPTIVE 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 does 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 Aernam v. Van Aernam, 1 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 be 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. Plowes 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 December, 1835. There 
 were rumors at the time that Mrs. B. was living in adultery 
 
 1 1 Bart. Ch. 375 (1846). 
 a 31 L. J. (Ch.) 680 (1862). 
 
RULE 21.] MARRIAGE AND LEGITIMACY. 115 
 
 With one D. But the court held that the child was lesriti- 
 mate. 1 
 
 Evidence of rumor that a person was illegitimate is itself 
 insufficient; 2 though such testimony is admissible in con- 
 nection with other facts. 3 In Kingv. Lufefit was held that 
 non-access of the husband need not be 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. 5 " But in the 
 absence of such irresistible evidence, the fact of sexual 
 intercourse must be 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. 6 
 
 But proof of access is not conclusive. 7 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. Maynard, 1 Madd. & Geld. 364 (18221. 
 
 2 Vaughn v. Ehodes, 2 McCord, 227 ; 73 Am. Dec. 713 (1822) 
 8 Stegalls). Stegall, ante. 
 
 ' 8 East. 
 
 6 Legge t>. Edmonds, 25 L.J. (Ch.) 125 (1856). 
 fi Morris v. Davis, supra. 
 
 ' R. v. Inhabitants of Mansfield, 1 Q. B. 444 (1814) ; Cope v. Cope, 1 M. & Rob. 275 
 (1833); R. v. Shepherd, 6 Einney, 283 (1841). 
 
116 PHESUMPTIVE EVIDENCE. [EDLE 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 only disproved by 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. 1 
 
 On this question the conduct of the supposed father or 
 of the mother towards the child is relevant. 2 In the case 
 of Morris v. Davies, 3 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 the Banbury Peerage Case, Lord Redesdale said: "I 
 admit that the law presumes the child of the wife of A., 
 born when A. might 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. 269 (1808) ; Wright v. Hicks, 12 Ga. 155 (1853) ; State v. 
 Pettaway, 3 Hawks, 623 (1825). 
 
 ' Cope v. Cope, 1 M. & Eob. 275 (1833). 
 S5C1.&F. 163(1836). 
 
RULE 21. J MARRIAGE AND LEGITIMACY. 117 
 
 direct proof, and can only be the result of presumption, 
 understanding by presumption a probable consequence 
 drawn from facts, either certain or proved by credible tes- 
 timony, by which may bo determined the proof of a fact 
 alleged, but of which there can be no direct proof. * * * 
 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. 1 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 which made access impossible. 2 
 
 The presumption still holds where the parties are living 
 apart from each other by mutual consent ; 3 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. 4 
 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 (1833). The report of this case in 5 C. & P. 604, 
 is incorrect and misleading. See 1 Q. B. 450, Lord Denman, C. J. 
 
 2 The Barony of Sale. 1 H. L. Cas. 507 (1848) ; and see Gurney v. Gurney, 32 L. J. 
 (Ch.) 456 (1863). 
 
 « St. George v. St. Margarets, 1 Salt. 123; Sidney©. Sidney, 3 P. Wms. 275 (1834) ; 
 Morris v. Davies, 5 CI. & F. 163 (1857) ; Hemminway v. Towner, 1 Allen, 209 (1B61). 
 Id. 
 
118 PRESUMPTIVE EVIDENCE. [RULE 21. 
 
 Neither the declarations of the wife, nor her testimony 
 that the child was the child of a man other than her hus- 
 band, are admissible; 1 nor of the wife that the husband 
 had not access or opportunities for access ; 2 nor of the 
 husband that he was not the father of the child, 3 or had not 
 access or opportunities for aceess. 4 And this rule is not 
 altered by the modern legislation permitting parties to 
 " testify in their own behalf." 6 But where non-access has 
 been established, the declaration of the wife is admissible 
 to prove the paternity of the child. 6 And on an indictment 
 for bastardy or fornication, the wife is a competent witness 
 to prove the connection. 7 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. 8 
 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. 9 
 
 In a Louisiana case 10 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 Brook. 257 (1825) ; Pendrell v. Pendrell, 2 Strange, 925 (1790) ; 
 Cope v. Cope, 1 M. & Bob. 275 (1833) ; Atchley v. Sprigg, 33 L. J. (Ch.) 345 (1864) ; 
 Stevens v. Moss, 2 Cowp. 594 ; Dennison ». Page, 29 Pa. St. 420 (1856) ; Com. v. Shep- 
 herd, 6 Binney, 283. 
 
 2 Com. v. Shepherd, 6 Binney, 283 (1814). 
 
 3 Id.; Hemminway v. Towner, 1 Allen, 209 (1861). 
 
 * Wright v. Holdgate, 3 Cook, 158 (1850) ; King v. Inhabitants of Somton, 6 Ad. & 
 Ell. 180 (1836). 
 
 6 Boykin u.Boykin, 70 N. O. 262 (1874). 
 
 o Legge v. Edwards, 25 L. J. Ch. 125 (1855). 
 
 » Com. v. Wentz, 1 Ashm. 269 (1808) ; State v. Pettaway, 3 Hawks, 673 (1825) ; 
 Com. v. Strieker, 1 Browne, XLVIII. (1801); Whitman v. State, 34 Ind. 312 (1870); 
 Com. v. Shepherd, 6 Binney, 213 (1841). 
 
 8 Phillips v. Allen, 2 Allen, 453 (1861) ; Plowes v Bossey, 31 L. J. (Ch.) 680 (1862) ; 
 Atchley v. Sprigg, 33 L. J. (Ch.) 345 (1864) ; Van Aernam v. Van A»,rnam, 1 Barb. Ch. 
 375 (1846); Sullivan «. Kelly, g Allen, 118 (1861). 
 
 Plowes v. Bossey, 13 L. J. (Ch.) 680 (1862). 
 1° Eloi v. Mader, 1 Rob. 581 ; 38 Am. Deo. 192 (1841). 
 
RULE 21. J MAEEIAGE AND LEGITIMACY. 119 
 
 a contest abides only with the putative father. Said 
 Murphy, J. : " The declarations of the plaintiff himself 
 cannot affect his condition, and are not to be 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 pater 
 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 habilis et znhabilis diversis tempovibus. 1 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. 
 
 l Bane's Case, 5 Coke 98, b. 
 
CHAPTEE Vn. 
 
 THE PRESUMPTION AGAINST A SPOLIATOR. 
 
 RULE 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 against his claims, 1 (A) unless the evidence is not 
 peculiarly within his power, (B) or is privileged. (C) 
 
 " It is certainly a maxim," said Lord Mansfield, mBlateh 
 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. 3 "Where" said 
 Chief Justice Shaw, in Com. v. Webster,* probable proof is 
 brought of a state of facts tending 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, 
 
 l Thompson v. Shannon, 9 Tex. 536 (1853) ; Mitchell v. Napier, 22 Tex. 120 (1858) ; 
 The Lawrence, 15 Fed. Rep. 635 (1883) ; Warner v. Daniels, 1 Woodb. & M. 90 (1845) ; 
 Nicol v. Crittenden, 55 Ga. 497 (1375). There is no presumption from a party not testi- 
 fying asawitness in his own case. Emory v. Smith, 54 Ga. 273 (1S75) ; Thompson v. 
 Davitte, 59 Ga. 472 (1877). Nor from a party failing to testify where the party'smind 
 has become impaired. Cramer v. City of Burlington, 49 Iowa, 213 (1878). In a suit 
 against a married woman no presumption arises against her from the fact that her 
 husband does not testify. Carter v. Beals, 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). 
 
 s McDonough o. O'Neil, 113 Mass. 92 (1873). The same inference frequently 
 arises on trials for crime. See post, Chap. XX. 
 
 4 5Cush. 316 (1850). 
 
 (120) 
 
EULE 22.] PKESUMPTION AGAINST A SPOLIATOR. 121 
 
 tending to support the charge, 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 
 be accounted for consistently with his innocence, and he 
 fails to off-er such proof, the natural conclusion is that the 
 proof, if produced, instead of rebutting would tend to sus- 
 tain the charge. But this is to be cautiously applied, and 
 only in cases where it is manifest that proofs are in the 
 power of the accused, not accessible to the prosecution." 
 
 Illustrations. 
 A. 
 
 I. The question is whether vessel A. or vessel B. which had collided 
 at night was negligent. 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 not. 1 
 
 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 from D. 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. 2 
 
 III. A. refuses to produce a deed which is part of a title which he 
 claims. The presumption is that if produced, the deed would injure 
 his claim. 3 
 
 IV. The plaintiff relies 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 
 that it contained the statement alleged, but do not produce the letter or 
 satisfactorily account for its non-production. The plaintiff 's represen- 
 tation is presumed to be true. 4 
 
 V. B. agrees to make a wagon 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 Ville de Havre, 7 Ben. 328 (1874). 
 
 2 Brown v. Schock, 77 Pa. St. 471 (1875). 
 s Haldano v. Harvey, 4 Burr. 2486 (1769). 
 
 i Lumley v. Wagner, 1 DeG. M. & G. 604 (1853). 
 
122 PRESUMPTIVE EVIDENCE. [itULE 22. 
 
 The presumption is that it was an unconditional order for the delivery 
 of the wagon. 1 
 
 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 
 ground that the book is a private one which no one has the right to see. 
 His conduct raises a presumption that the book would contain evidence 
 unfavorable to his side of the case. 2 
 
 VII. A party after notice refuses to produce an agreement. The pre- 
 sumption is that it is stamped as required by law. 3 
 
 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. 5 
 
 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. 6 
 
 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, he gives no evidence as to 
 
 1 Barber v. Lyon, 22 Barb. 62 (1856). 
 
 2 Lowell v. Todd, 15 U. C. C. P. 306 (1865) ; and see Page v. Stephens, 23 Mich. 357 
 (1871). 
 
 s Crisp v. Anderson, 1 Start. 35 (1815). 
 
 * Clifton v. United States, 4 How. 246 (1846) ; Attorney-General v. Halliday, 2G U. 
 C. Q. B. 397 (1817). 
 
 « Bryant v. Stillwell, 24 Pa. St. 314 (1855). 
 6 Ciunnes v. Pezzey, 1 Camp. 8 (1807). 
 1 Lawton v. Sweeney, 8 Jur. 694 (1844). 
 
RULE 22.] PRESUMPTION AGAINST A SPOLIATOR. 123 
 
 what he had received for them. The presumption is that he received the 
 highest price paid for such cattle. 1 
 
 XIII. A witness refuses to explain matters within his knowledge. 
 The presumption is that the explanation, if made, would be to his pre- 
 judice. 2 
 
 XIV. C. brought an action for $200 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 jury that they might infer from this that the books, if 
 produced, would not aid in the defense. Held, correct. 8 
 
 XV. The defendant in a case is represented by five 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 before 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 the 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 
 relies 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 weigh both sides to determine the real motive. 
 If he knew he was not the Brown who accompanied Simpson, 
 the accomplice, his motive was 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. 628 (1830). 
 o Heath v. Waters, 40 Mich. 457 (1879). 
 » Cross v. Bell, 34 N. H. 82 (1856). 
 * Brown v. Oattis, 55 Ga. 416 (1875). 
 
124 PRESUMPTIVE EVIDENCE. [RULE 22. 
 
 assuming the burden of disproving it by rebutting testi- 
 mony." 
 
 In cases like case III. it is laid down that the case of 
 written evidence presents the strongest illustration 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 against him who withholds it. 1 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." 2 
 
 In Attorney- General v . 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 
 
 l Miller v. Jones, 32 Ark. 337 (1877) ; Grimes v. Kimball, 3 Allen, 518 (1862) ; Bell v. 
 Hearne, 10 La. Ann. 515 (1855) ; Durgin v. Danville, 47 Vt. B2 (1874) ; Parks v. Richard- 
 son, 4 B. Mon. 276 (1843) ; Mordeoai ». Beall, 8 Port. 535 (1839). 
 
 s Tryman v. Knowle's, 13 C. B. 222 (1853). 
 
 3 24Beav.679 (1857). 
 
RULE 22. J PRESUMPTION AGAINST A SPOLIATOR. 125 
 
 proof, relies upon weak and inferior evidence which he 
 produces in the place of stronger and better evidence which 
 is within his power, and which he fails to produce, the pre- 
 sumption arises that if he produced the latter it would 
 injure instead of benefiting his case. "Under these cir- 
 cumstances," said Mr. Justice Nelson, " the claimant 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 between primary 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 meaning 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 
 unfavorable 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 PRESUMPTIVE EVIDENCE. [RULE 22. 
 
 For a like reason — even 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 i± 
 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 2 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 Black 
 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 Evana' Pothier, 149. 
 
RULE 22. J PRESUMPTION AGAINST A SPOLIATOR. 127 
 
 omission of the possessor of stolen property, recently- 
 stolen, to account for his possession does against him." 1 
 
 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 liable 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 length. " 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. 2 It ought to be 
 understood that where a party has the subject-matter of 
 the controversy under his exclusive control, it is never safe 
 
 1 Black v. Wright, 9 Ired. (L.) Wl (1819). 
 
 5 The defense was that the work on the house had been imperfectly and negli- 
 gently done. 
 
128 PRESUMPTIVE 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. 1 
 
 In case XII. it was said: " The 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 
 
 l And see Hayden v. Hayward, 1 Camp. 180 (1S08). 
 
RULE 22.} PRESUMPTION 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 highest 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 
 Waters, 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 to us 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 
 are cases in which a failure to respond on cross-examination 
 will justify the exclusion of at least so much of the direct 
 testimony as it might have qualified. It must always dam- 
 
130' PRESUMPTIVE EVIDENCE. [RULE 22. 
 
 age its credit. When 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 XIV. 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, 1 and he cites Cooper v. 
 Gibbons, 2 which sustains the position. Substantially to the 
 same point are Roscoe's Cr. Ev. ; 3 Life and Fire Ins. Co. 
 v. Mechanic Fire Ins. Co.* Symington v. McLin. 6 In 
 Clifton v. United States, 6 goods had been seized upon sus- 
 picion of being fraudulently imported. On the trial it was 
 shown by the government that there was sufficient 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 Ins. Co., 1 Shaw, C. J., says: 'The rule that upon 
 
 i 1 Greenl. Ev., Bee. 37. » 1 Dev. & B. 291. 
 
 2 3 Camp. 363. • 4 How. 242. 
 
 8 p. 11. ' 10 Pick. 329. 
 * 7 Wend. 31. 
 
EULE 22. J PEESUMPTIOX AGAINST A SPOLIATOR. 131 
 
 the trial of controverted facts the party 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, 1 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 were 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. 
 
132 PRESUMPTIVE EVIDENCE. [RULE 22. 
 
 admitted that they are under the control of the party, and 
 secondary evidence is given, and such evidence is imperfect, 
 vague, 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 the 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 court 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- 
 
RULE 22. J 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 was called for, and if the books would 
 have aided the defendants they would no doubt have been 
 produced. ' ' 
 
 In Braithwaite v. Coleman, 1 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 me in time." 
 The defendant had been notified 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 
 own 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 Curlewis v. Corfield, 2 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 Harr & Woll. 229 (1835). » 1 Q. B. 814 (1841). 
 
134 PRESUMPTIVE EVIDENCE. [RULE 22. 
 
 former case whether 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 being 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. Franhis, 1 
 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 him 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. 2 
 
 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. 3 But an instruction 
 that " everything may be presumed against the spoliator of 
 the will," has been held too broad.* 
 
 In Hammersmith, etc., B. Co. v. Brand, 6 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 vibratious — the house was of a cer- 
 
 1 4 Man. & Gr. 447 (1842). 
 
 * And see, Lobb v. Stanley, 5 Q. B. 574 (8144.) 
 
 » Frlok v. Barbour, 64 Pa. St. 120 (1870). 
 
 ■i Bottii. Wood, 56 Miss. 186 (1878). 
 
 'L E. 4 H. L. 224(1869). 
 
RULE 22. J PRESUMPTION AGAINST A SPOLIATOR. 135 
 
 tain value before the railway was put there ; if the railway- 
 causes vibration, evidence can easily be obtained to prove 
 what the amount of deterioration in value is, and the sum 
 can be awarded accordingly. The subject may be 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 be 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 willing 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 be 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. 1 
 
 II. In a suit between C. and D. C. does 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. z 
 
 III. There is no proof that a party has withheld evidence. The non- 
 production of better evidence, more full and definite than he presents, 
 raises no presumption against him. 3 
 
 In cases like case I. the rule is that where the evidence 
 alleged to be withheld is unattainable, the presumption does 
 
 1 Gilbert v. Eoss, 7 M. & W. 121 (1840) ; Marston v. Downes, 1 Ad. & Ell. 32 (1S31) • 
 
 2 Scovill v. Baldwin, 29 Conn. 318 (1S58;. 
 » Schnell v. Toomer, 66 Ga. 168 (1876)-. 
 
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 
 destroyed, 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 Merwin v. Ward, 1 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 he 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 the defendants had it been given, but 
 whether, in the absence of all such evidence, they were in 
 
 1 15 Conn. 377 (1843). 
 
RULE 23.] PRESUMPTION AGAINST A SPOLIATOR. 137 
 
 law bound to raise a presumption against the plaintiff. A 
 presumption of what? That the books contained entries 
 showing that the plaintiff 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 witness 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 he is not produced the jury have 
 no right to presume anything in respect to his knowl- 
 edge of any facts in the case." 
 
 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. 1 
 
 RULE 23. — But the presumption arising from the non- 
 production of evidence within the power of the party 
 does not relieve the opposite party altogether from 
 the hurden of proving his case. 2 
 
 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 possession they 
 were was notified to produce is, that a deed existed from one of the part- 
 ners of a firm to the firm itself. The jury are not at liberty to consider a 
 refusal to produce the books and papers as a reason upon which to pre- 
 sume the existence of the deed. 3 
 
 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. Lloyd, 10 H. L. Cas. 589 (1864). 
 
 " Cooper v. Gibbons, 3 Camp. 363 (1813) ; Attorney-General v. Le Merchant, 2 
 Terra Rep. 201. 
 
 2 Hanson v. Eustice, 2 How. 653 (1864). 
 
138 PRESUMPTIVE EVIDENCE. [RULE 23. 
 
 duced, they would establish the fact which the party calling for them 
 alleges they would prove. 1 
 
 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. 2 
 
 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. 3 
 
 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 prcesumuntur contra 
 spoliator em. 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 (1831) ; Rector v. 
 Rector, 8111. 120 (1816). 
 
 2 Spring Garden Hut. Ins. Co. v. Evans, 9 Md. 1 (1856). 
 s Chaffee v. V. S., 18 Wall. 616 (1873). 
 
RULE 23.] PRESUMPTION AGAINST A SPOLIATOR 139 
 
 the contents of such books or papers if they are shown 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 be 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 a prima facie case of 
 compliance with the requirements of the policy on that sub- 
 ject, which we think has not been done." 
 
 In case XV. 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 
 the 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 palpable 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 
 
140 PRESUMPTIVE EVIDENCE. [RULE 24. 
 
 — the right to refuse to testify — into the machinery for 
 their sure destruction." 
 
 RULE 24. — Tlie alteration, suppression, falsification, 
 destruction or manufacturing of evidence raises a 
 presumption against the spoliator, where the evidence 
 is relevant to the case <A), or it was his duty to pre- 
 serve it (B), — omnia prsesumuntur contra spoliatorem. 
 
 The maxim omnia prcesumuntur 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. 1 " Spoliation," it is said 
 in one case, 2 " 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." 3 " 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. 6 
 
 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., in Bryant v. Stillwell, 24 Pa. St. SH (1855). 
 
 2 Little v. Marsh, 2 Ired. Eq. 28 (1841). 
 
 8 Hoslop v. Heslop, 82 Pa. St. 53 (1876) ; Loomis, J., in Harris v. Rosenberg, 43 
 Conn, 227 (1875). "If the jury should be convinced of the spoliation, it would be 
 their duty to infer anything in favor of the deed as against the spoiler. Diehl v. 
 Emig, 65 Pa. St. 328 (1S70.) 
 
 4 Tedder v. Stiles, 16 Ga. 2 (1854). 
 
 5 Uostigan v. Mohawk, etc., It. Co., 2 Dcnio, 600; 43 Am. Dec. 758 (1846) ; Stewart 
 v. Preston, 1 Fla. 10; 44 Am. Dec. 621 (1846) ; Jackson v. Miller, 6 Wend. 228; 21 Am. 
 Dec. 316 (1830) ; Snyder v. Riley, 6 Pa. St. 164; 47 Am. Dec. 452 (1847). 
 
EULE 24.] PRESUMPTION AGAINST A SPOLIATOR. 141 
 
 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. 1 
 
 II. Certain jewellers had lost from their shop a valuable diamond 
 necklace consisting of fifty-six brilliants. Thirty of the stones, which 
 formed the sides 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 he 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 in the defendant's possession. 2 
 
 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 prasumuntur." 
 
 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. 4 
 
 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. 6 
 
 VI. A deed limiting a term is burnt by the defendant, who contends 
 that the limitation is void. Since the term might be limited so as to 
 legally take effect, the presumption is that it was so limited. 6 
 
 i Armory v. Delamirie, 1 Smith L. 0. 357; or in the words of the poet: 
 " And seeing by this wickedness the stone 
 
 Was made away and his worth known to none 
 
 Craftsmen there came to show by weight and tale 
 
 What gems of best and uttermost avail 
 
 Might in the compass of that ring be laid 
 
 With no less damage it should be paid 
 
 For Whatman hideth truth in wrong- doing, 
 
 Against him the law deemeth everything." 
 
 — [Leading Cases Done into English, London, 1876. 
 » Mortimer v. Craddook, 17 Jur. 45. 
 
 * Wardour v. Beresford, 1 Vern. 452 (1687). 
 
 * Hunt v. Matthews, 1 Vern. 408 (1686). 
 5 Bailey v. Shaw, 24 N. H. 300 (1851). 
 
 * Dalston v. Coatsworth, 1 P. Wms. 731 (1721). 
 
142 PRESUMPTIVE EVIDENCE. [RULE 24. 
 
 VII. A vendor of real estate seeks to avoid the enforcement of his 
 contract to convey on the ground that by its terms, time was of the 
 essence thereof, and bound the vendee to pay the purchase-money at a 
 specified time or forfeit his rights. The vendee denies this. The fact 
 that the 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. 1 
 
 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. 2 
 
 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. 3 
 
 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 
 prcBsumunter contra spolitztorem would be applied. 5 
 
 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. 6 
 
 XIII. An action is brought to recover of a steamboat the damages 
 received by a canal boat in a collision. The steamboat sets up as a 
 
 1 Warren v. Crew, 22 Iowa, 315 (186T) ; and see Jacfcson v. McVey, 18 Johns. ?31 
 (1820) ; Kent v. Bottoms, 3 Jones (Eq.), 69 (1856). 
 
 2 Preston jj. Leighton, 6 Md. 83 (1854). 
 
 s Carneal v. Day, Litt. Sel. Cas. 492 (1821). 
 4 Downing v. Plate, 90 111. 268 (1878). 
 6 Barney v. Seeley, 38 Wis. 381 (1875). 
 
 » Annesley v. Earl of Anglesea, 17 How. St. Tr. 1430 (1743) ; see Winehell v. Ed- 
 wards, 57 111. 41 (1870). 
 
RULE 24. ] PRESUMPTION AGAINST A SPOLIATOR. 143 
 
 defense the extreme darkness of the night, and her master produces a 
 log book purporting to have been kept by him, which shows this. In 
 rebuttal 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. 1 
 
 XIV. An action had been brought by A. and his wife for injuries sus- 
 tained by the latter through B.'s negligence. Qn the trial, one W. 
 testified 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. 2 
 
 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 veijr 
 strong presumption that the signature is false. 3 
 
 XVI. In an account book of one M., offered in evidence, there was 
 this entry: "June 30, 1859, 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 presumption is that at the time the entry was 
 made it was true, and that Sterling is entitled to acredlt of $135. 4 
 
 " The jury 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. Delamii-ie." (Case I.). 
 
 In case XIII., it was said : " This conclusion 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 Tillie, 7 Ben. 382 (1874). 
 
 2 Moriarty v. London, etc., E. Co., L. E. 5 Q. B. 314 (1870). 
 a Teople v. Marion, 29 Mich. 31 (1874) 
 
 * Sheils v. West, 17 Cal. 324 (1861). 
 
144 PRESUMPTIVE EVIDENCE. [EULE 24. 
 
 mony and remain unanswered 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 plain- 
 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 sub- 
 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. 1 
 "Where deeds or writings are suppressed," it was said as 
 early as 1677 " omnia prmsumuntur , etc., and he who has 
 committed iniquity shall not have equity." 2 In equity the 
 
 1 Cookes v. Hellier, 1 Ves. sr. 235 (1749). 
 
 s Gartsidc v. Ratcliff, Chac. Cas. 292 (1677). '* The court," it was said in a North 
 Carolina case (Halyburton v. Kershaw, S Dessau. 105 (1S10), "will go very far m 
 presuming against those who destroy papers and instruments necessary to the 
 security or elucidation of the rights of others in odium spoliatoris, as it is expressed, 
 even where the spoliation is done unadvisedly and not fraudulent." 
 
KULE 24. J PRESUMPTION AGAINST A SPOLIATOR. 145 
 
 suppression of documentary evidence always raised the 
 presumption that it would, if produced, show something 
 unfavorable to the party withholding it. 1 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. 2 And in chancery, although the court would not decree 
 on the testimony of a single witness against the express 
 denial on oath of the defendant, yet where the written 
 evidence had been destroyed by the defendant pendente lite, 
 the court would assume that if forthcoming, it would have 
 proved the statement of the single witness. 3 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. 4 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. 5 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, 6 or the 
 trading of an interloper to the West Indies in violation of 
 another's charter. 7 So where 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, 8 and so where a person 
 ran away with a casket of jewels belonging to another. 9 
 
 J Owen v. Flack, 2 Sim. & Stn. 606 (1826). 
 
 » Sansam v. Ramsay, 2 Vern. 561 (1706) ; Hampden v. Hampden, 1 Brown P. C. 
 250. 
 
 s Gray t>. Haig, 20 Beav. 219. 
 
 * Lady Strathmore v. Bowes, 1 Ves. 22. 
 
 6 Blanchet v. Foster, 2 Ves. sr. 265 (1751). 
 
 6 East India Co. v. Sandys, 1 Vern. 127 (1682). 
 
 i Id. ; East India Co. v. Evans, 1 Vern. 308 (1684). 
 
 e Childrens v. Saxby, 1 Vern. 207 (1683). 
 
 8 East India Co. v. Evans, 1 Vern. 308 (1684). 
 
 10 
 
146 PRESUMPTIVE EVIDENCE. [RULE 24. 
 
 In an anonymous case in Lord Kaymond, 1 it was said by 
 Chief Justice Holt, that if a man destroy a thing that is 
 designed to be evidence against 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. 8 Iu 
 Leeds v. Cook,* where a letter had been written by the 
 plaintiff to a witness and the latter had been served with a 
 subpoena 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. But 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 ; 6 
 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. 6 
 
 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. Wins. 130 (1721). 
 
 8 See in explanation of this case, Cowper v. Cowper, 2 P. Wms. 749. 
 
 « i Esp. 256 (1803). 
 
 6 Jenne v. Ward, 2 Stark. 327 (1818). 
 
 « Decker v. Matthews, 12 N. Y. 313 (1855). 
 
RULE 24.] PRESUMPTION AGAINST A SPOLIATOR. 147 
 
 offered in confirmation thereof to put in his father'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. 1 
 
 ' ' Where the exaet 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." 2 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. 3 In Jones v. Murphy * it was said: " If, 
 therefore, on another trial, the jury should find the 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, dishonesty." Where a letter which, it 
 
 1 Sutton v. Davenport, 27 L. J. (C. P.) 54 (135). 
 
 2 Betts v. Jackson, 6 Wend. 173 (1830). 
 
 » Harwood v. Goodright, Cowp. 91 (1774). 
 <8W. &S. 301 (1844). 
 
148 PRESUMPTIVE EVIDENCE. [RULE 24. 
 
 was claimed was part of a will, was destroyed by the uni- 
 versal legatee, the maxim was applied. 1 
 
 B. 
 
 I. A., a trustee, fails to preserve his vouchers for disbursements and 
 expenses. The presumption is against A.'s claim. 2 
 
 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. 3 
 
 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 organization, and the regularity of the issue of the bonds 
 disappears pendente lite. It is traced into the hands of the officers 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. 5 
 
 V. A trustee destroys a trust instrument. The presumption is that it 
 contained matters prejudicial to his interest. 6 
 
 VI. In the settlement of a partnership the partner who made the pur- 
 chases being called on to produce the original invoices, produces some, 
 but not all; those produced show overcharges. The presumption is that 
 the others if produced would have shown similar overcharges. 7 
 
 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 
 
 l Lucas i>. Brooks, 23 La. Ann. 117 (1871). 
 
 « Landis v. Scott, 32 Pa. St. 498 (1859). 
 
 s White v. Lincoln, 8 Ves. 363 (1803). 
 
 < Hunter v. Lauder, 8 Canada L. J. (N. s.) 17 (1872). 
 
 6 Riggs v. Pennsylvania E. Co., 16 Fed. Bep. 804 (1883). 
 
 « Jones v. Knauss, 31 N. J. (Eq.) 609 (1879). 
 
 ' Bush v. Guion, 6 La. Ann. 797 (1861). For a recent application of the maxim 
 where in a contest between partners it was shown that one partner had suppressed 
 and destroyed evidence, see Pomeroy v. Benton, 77 Mo. 64 (1882). 
 
RULE 24.] PRESUMPTION AGAINST A SPOLIATOR. 149 
 
 obligation to prove that he has actually received what he 
 might have received, and what it was his duty to endeavor 
 to obtain. By failing to keep and submit accounts, he 
 assumes the burden of repelling the presumption and dis- 
 proving negligence and faithlessness." 1 
 
 " 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 
 prcBsumuntur. 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. 3 So a party wilfully mixing his goods 
 with those of another person is bound to prove which are 
 his. 8 
 
 i Landis v. Scott, 32 Pa. St. 498 (1859). 
 
 » Hart v. Ten Eyck, 2 Johns. Ch. 108 (1816) ; Ryder v. Hathaway, 21 Pick. 298 
 (1S38). . 
 
 * Loomis v. Green, 7 Me. 38S (1831). Several cows belonging to different owners 
 break into a private garden and do damage. The presumption is that each cow did 
 an equal amount of damage. Fartenheimer v. Van Order, 20 Barb. 479 (1865). 
 
150 PRESUMPTIVE EVIDENCE. [KULE 24. 
 
 In international law the principle of the maxim is carried 
 very far. " It is certain," said Sir William Scott in The 
 Hunter, 1 " 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 vigor, 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 The Johanna Emelie, 2 
 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 
 undej all circumstances, because it might be carried to a 
 
 1 1 Dods. Adm. 480 (1815). s 18 Jur. 703 (1855). 
 
RULE 24.] PKESUMPTION AGAINST A SPOLIATOR 151 
 
 very absurd length. I apprehend it might 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 bo going the length of saying 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. 1 * * * In The Rising 
 Sun, 2 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 3 is the law of the United States. " Con- 
 cealment or even spoliation of papers," said Mr. Justice 
 Story in The Pizarrof " is not of itself a sufficient ground 
 for condemnation in a prize court. It is undoubtedly a 
 very awakening circumstance, calculated to excite the vigi- 
 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." 
 
 i Citing The Hunter, 1 Dods. Adm. 480; The Two Brothers, 1 Hob. Adm. 131; The 
 Polly, 2 Bob. Adm. 361. 
 
 2 2 Eob. Adm. 104. 
 
 3 See note 2 Wheat. 242. 
 « 2 Wheat. 241 (1817). 
 
152 PRESUMPTIVE EVIDENCE. [EULE 25. 
 
 RULE 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 
 alone raises a presumption against his claim. Thus in 
 Askew v. Odenkeimer 1 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 odium spoliatoris 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. 2 " I do not remember or believe," 
 said the Master of the Eolls in Oowper 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- 
 hursh,* " in a favorable light, but notwithstanding the rule 
 that things are to be 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 Bald. 390 (1183). 
 
 " Bott v. Wood, 66 Miss. 136 (1878). 
 
 s 2 P. Wms. 748 (1734). 
 
 * Amb. 248 (1764). 
 
EULE 25.] PRESUMPTION AGAINST A SPOLIATOR. 153 
 
 duced." In Askew v. Odenheimer 1 it was said: "But 
 when he comes to charge the spoiler in account, in order to 
 raise a debt against him, 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 relies 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, yet if it conduces to prove the charge it is 
 legally sufficient, its weight or credibility is a matter of dis- 
 cretion and circumstance. No specific sum can be charged 
 against 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." 2 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 3 the court say : " The principle of the 
 maxim omnia prcBsumuntur in odium spoliatoris, 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. Odenheimer, 1 Bald. 390 (1831). 
 
 » 56 Miss. 136 (1878). 
 
154 PEESUMFTIVE EVIDENCE. [RULE 26. 
 
 RULE 26. — But the presumption in disfavor 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). 
 
 Illustration. 
 
 A. 
 
 I. The contents of a paper are proved by witnesses. The paper is 
 withheld by the custodian. No presumption arises against him. 
 
 In Bott v. Wood, 2 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. 2 
 
 ♦'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). 
 
 » Miltenberger v. Coyle, 27 Pa. St. 170 (1856). 
 
RULE 26. J PRESUMPTION AGAINST A SPOLIATOR. 15j 
 
 act of spoliation. All parties in interest were present and 
 John Coyle 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 
 acknowledged by Mary Coyle separate and apart from her 
 husband." 
 
 The presumption does not extend beyond the thing taken 
 or suppressed. In Harris v. Rosenberg, 1 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 
 does 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, while 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 fasten 
 
 1 43 Conn. 227 (1875). ' 
 
156 PRESUMPTIVE EVIDENCE. [RULE 2<0. 
 
 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. 1 
 
 The presumption of course is not conclusive. In Thomp- 
 son v. Thompson, 2 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 recog- 
 nized in Continental Europe, under certain circumstances, 
 raises a conclusive presumption against the spoliator of 
 
 1 MoEeynolds v. MoCord, 6 Watts, 2S8 (1837). 
 
 2 9 Ind. 323 (1857). 
 
RULE 27.] PRESUMPTION AGAINST A SPOLIATOR. 157 
 
 papers indicating the national character of a vessel ; but 
 even that rule does 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 who 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. 
 
 Illustrations. 
 
 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. 1 
 
 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 oft a writing attached 
 to it. He can not prove its contents by parol. 3 
 
 In case I. it was said: " The proof is that the plaintiff 
 deliberately and voluntarily destroyed the note 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 affirmatively, for it would be in viola- 
 
 1 Blade v. Noland, 12 Wend. 173 (1834). 
 s Joannes v. Bennett, 8 Allen, 169 (1862). 
 8 Price v. Tallman, 1 N. J. (L.) 447 (1794). 
 
158 PRESUMPTIVE EVIDENCE [PTJLE 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 purpose 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 prcesumuntur. 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 party 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.] PRESUMPTION 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. He must first rebut 
 the 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. 1 
 
 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. 2 
 
 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. 3 
 
 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. 4 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. 5 The naked fact of a voluntary destruc- 
 
 i See Kiggs v. Tayloe, 9 Wheat. 437 (1824). 
 
 2 Id. 
 
 3 Tobine. Shaw, 45 Me. 344 (1858). 
 
 * Villars v. Villars, 2 Atk. 71. Opinion ol Chancellor Lansing in Livingston v. 
 Rogers, 2 Johns. Cas. 488 (1802). 
 
 s Livingston v. Rogers, Id. ; Jackson v. Woolsey, 10 Johns. 453 (1814). 
 
1G0 PEESUMETIVE EVIDENCE. [EULE 28. 
 
 tion of a document raises such a presumption of fraud as 
 to preclude all secondary evidence of its contents by the 
 spoliator. 1 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 m., " 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. 2 
 
 1 Bagley v. McMickle, 9 Cal. 449 (1858) ; Speer v. Speer, 7 Ind. 178 (1855) ; Wilson 
 v. Cassidy, 2 Ind. 562; Parker v. Kane, 4 Wis. 1 (1855) ; Broadwell v. Stiles, SK.J 
 (L.) 58 (1824) ; Blake v. Fash, 44 111. 304 (1867) ; Henderson v. Hoke, 1 Dev. & B. 119 
 (1836). 
 
 2 Grimes v. Kimball, 3 Allen, 518 (1862); Almy ti.Eeed, 10 Cush. 421; Hedge v 
 McQuaid, 11 Cush. 352. 
 
PART III 
 
 PRESUMPTIONS OP CONTINUANCE 
 AND UNIFORMITY. 
 
 11 
 
 (161) 
 
CHAPTER VIII. 
 
 THE PEESUMPTION OF THE CONTINUANCE OF THINGS 
 GENEEALLY. 
 
 KULE 29. — Possession or ownership of either realty or 
 personalty (A), non-possession or loss (B), debts (C), 
 and other conditions of property or things (D), once 
 proved to exist, are presumed to continue until the 
 contrary is shown. 1 
 
 Illustrations. 
 
 I. It ia proved that at a given time B. was seized of certain land. 
 The presumption is that such seizure continues and the burden is on him 
 who alleges a disseisin. 2 
 
 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 on 
 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. 4 
 
 A note once proved to have existed, it was said in case 
 III., is presumed to exist still, unless payment be shown or 
 
 1 Gould v. Norfolk Lead Co., 9 Cush. 338 (1852) ; Garner v. Green, 8 Ala. 96 (1845) ; 
 Kidder v. Stevens, 60 Cal. 415 (1882). 
 
 2 Brown v. King, 5 Mete. 173 (1842) ; 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) ; 
 Khone v. Gale, 12 Minn. 54 (1866) ; Graya. Finch, 23 Conn. 513; Winkley v. Kaime, 32 
 N. H. 268 (1855) ; Pickett ». Packham, L. E. 4 Ch. App. 190 (1868) ; Smith v. Hardy, 36 
 Wis. 417 (1874) ; Harriman v. Queen Ins. Co., 49 Wis. 71 (1880) ; U. S. v. Da Coursey, 
 1 Pinney (Wis.) 508 (1815) ; Hanson v. Chitovitch, 13 Nev. 395 (1878) ; Hunter v. Ben- 
 nett, 15 La. Ann. 715 (1860). 
 
 * Jackson v. Potter, 4 Wend. 672 (1830). 
 
 * Bell v. Young, 1 Giant's Cas. 175 (1854). 
 
 ( 163 ) 
 
164 PRESUMPTIVE EVIDENCE. [eDLE 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 showing that it is rests on him who alleges it. And 
 when 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 presump- 
 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- 
 sent, 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. 1 
 
 Whenever the possession of one person 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- 
 uing in the same subordination to the title. 3 
 
 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. 3 
 
 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 Cush. 148 (1S51). 
 = Hood o. Hood, 2 Grant's Cas. 229 (1858). 
 
 3 Saunders v. Springsteen, 4 Wend. 429 (1S30). 
 
 4 Poe.v. Darrali,20 Ala. 289 (1852). 
 
BULB 29.] CONTINUANCE OP THINGS GENERALLY. 165 
 
 c. 
 
 I. A statute authorizes the issuance of an attachment upon the filing 
 of an affidavit showing the existence of the debt, etc., at the time of the 
 application. An affidavit is made on October 5th, showing a debt, etc., 
 on that day, but it is not filed till October 16th, when the attachment is 
 applied for. The presumption is that the debt is unpaid on the 16th, 
 and the attachment is properly issued. 1 
 
 II. A debtwas due from A. to B., in January, 1866. InNovember, 1865. 
 A. admits the debt, and in 1867 B. brings suit for it. The presump- 
 tion is that the debt is still due. 2 
 
 III. To prove a debt against a bankrupt, an entry in his books some 
 months before the bankruptcy showing that he was indebted to the 
 claimant in a certain sum is proved. The presumption is that the debt 
 still continues. 3 
 
 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 
 16th 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 wa3 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 does not take the 
 case out of the general rule. Payment 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'Neil v. New York, etc., Mining Co., 3 Nev. 141 (1867). 
 
 s Fair v. Payne, 40 Vt. 615 (1868). 
 
 • Jackson v. Irvin, 2 Camp. 48 (1809). 
 
166 PRESUMPTIVE EVIDENCE. [RULE 29. 
 
 seal — which 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 the 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, 1 or a receipt for subsequent debts. 2 
 
 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. 3 
 
 II. A box containing several pieces of cloth addressed to Ton du Lac, 
 Wis., was delivered at Jamestown, N.Y., to the Atlantic and Great West- 
 ern E. Co. This carrier transported it to Mansfield, Ohio, and delivered 
 it to the Pittsburg and Ft. Wayne B. Co., who carried it to Chicago and 
 delivered it to the Chicago and North Western B. Co., who 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 
 North Western E. Co. for the value of the missing pieces, held, the box 
 being found to be intact when it was delivered to the first carrier, the 
 presumption is that it continued so, until the contrary is shown, and 
 the defendant (the last carrier) is liable. 4 
 
 III. A vessel is proved to be seaworthy (as to chains, cables, etc.), 
 when she left port in June, 1835. On December 15th she is wrecked, 
 and arrives in port December 24th without sufficient cables, etc. The 
 presumption is that she was sufficiently equipped on December 15th. B 
 
 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. 6 
 
 1 Colsell v. Budd, 1 Camp. 27. 
 
 3 Best Ev. sec. 406 ; see post, Cap. XV. 
 
 » Smith v. New York Central B. Co., 43 Barb. 225 (1804). 
 
 * Laughlin v. Chicago, etc., R. Co., 28 Wis. 201; 9 Am. Kop. 493 (1871). 
 
 * Martin v. Fishing Ins. Co., 20 Pick. 389 (1838). 
 « Wilkins v. Earlc, 44 X. Y. 172 (1870). 
 
RULE 29.] CONTINUANCE OF THINGS GENERALLY". 167 
 
 V. It is shown that a decree in chancery was 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. 1 
 
 VI. The question is whether a certain custom existed in the year 1840. 
 The jury finds that the custom existed in 1689, without more. The pre- 
 sumption is that the custom exists in 1340. z 
 
 " The property," as was said in case I., " was placed in 
 the hands 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 
 rights will be 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 
 
 l Murphy v. Orr, 32 111. 489 (1863). But see Bacon v. Smith, 2 La. Ann. HI (1817). 
 ' Scales v. Key. 11 Ad. & Ell. 619 (1810). 
 
1G8 PRESUMPTIVE 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 by direct 
 evidence of the facts themselves, or by legitimate and 
 proper inference from other facts proved, first, that the 
 cloths which 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, must 
 have been established, or the verdict can not be sustained. 
 The direct proof i3 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 mere 
 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 law and 
 fact.' 1 Does such legal presumption exist in this case? 
 The presumption claimed 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 direct or 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 
 Railway Company, the presumption of law is that they 
 
 l Welch v. Sackett, 12 Wis. 257'; Graves v. State, Id. 693. 
 
EULE 29.] CONTINUANCE OF THINGS GENERALLY. 169 
 
 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, but the 
 point is upon its applicability here. If the plaintiffs had 
 brought their suit against the Atlantic and Great Western 
 Company, 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 avoided 
 responsibility on the same ground ? Could both these com- 
 panies have exonerated themselves and imposed liability 
 for the loss exclusively upon the defendant, when 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 impossible 
 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 PBESUMPTIVE EVIDENCE. [RULE 29. 
 
 must be 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 whose 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 effect, 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 
 against 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 has been done the defendant. 
 On the other hand, the wrong and injustice done the plain- 
 tiffs, if they are dismissed without remedy, are certain. 
 They are no matter of doubt or speculation. 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 consignee 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." 
 
 "When you prove," it was said in case IV., "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 PRESUMPTIVE EVIDENCE. [HULE 30. 
 
 Possession is presumed to continue. The fact that a man 
 was a gambler twenty years since justifies the presumption 
 that he 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." 
 
 KUIiE 30. — Domlcil, residence or non-residence (A), 
 solvency or insolvency (B), infancy (C), partnership 
 (D), the holding of an office (E), authority to do an act 
 (F), and other relations or conditions of persons or 
 things (Gr), once shown to exist, are presumed to con- 
 tinue until the contrary is proved. 
 
 Illustrations. 
 
 I. An action is brought in Arkansas, in 1841, by B. against P. It is 
 proved that P. resided, in 1824, in Indiana. The presumption is that P. 
 still resides there. 1 
 
 II. B., an inhabitant of the 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. 2 
 
 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 a non-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 v. Inhabitants, 6 Allen, B08 
 (1S63) ; Eaton v. Woydt, 26 Wis 383 (1870) ; Rixford v. Miller, 49 Vt. 319 (1877) ; Green- 
 field v. Camden, 74 Me. 56 (1882) ; Daniels v. Hamilton, 62 Ala. 105 (1875). 
 
 s Kilburn v. Bennett, 3 Mete. 199 (1841). 
 
EULE 30. J CONTINUANCE OF THINGS GENERALLY. 173 
 
 has been within the State a sufficient length of time to create a bar under 
 the statute. 1 
 
 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 H. is taken for this cause. Subse- 
 quently when it is offered on the trial, it is alleged that H. is now in 
 town, and able to attend. The burden of proving this is on the party 
 alleging this. 2 
 
 " It is necessary," said Lord Westbury in a leading En- 
 glish case, " in the administration of the law, that the idea of 
 domicil should exist and the fact of domicil should be 
 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." 3 
 
 And Lord Cranworth added : " It is necessary to bear in 
 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." * 
 
 I. A. is proved to be in solvent circumstance on a certain day. A. is 
 presumed to continue solvent until the contrary is proved. 5 
 
 l State Bk. v. Sewell, 18 Ala. 616 (1851). 
 
 s Brown v. Burnham, 28 Me. 38 (1848). 
 
 s Bell v. Kennedy, L. E. 1 So. App. 320 (1868). 
 
 * And see as to the presumption of continuance of domicil, residence, and non- 
 residence, Daniels v. Hamilton, 62 Ala. 105 (1875) ; Walker v. Walker, 1 Mo. (App.) 
 404 (1S76) ; Nixon v. Palmer, 10 Barb. 175 (1850) ; Church v. Rowel], 49 Me. 367 (1861) ; 
 Littlefleld v. Inhabitants, 50 Id. 475 (1862) ; Goldie v. McDonald, 79 111. 605 (1875). 
 
 6 Walrod v. Ball, 9 Barb. 271 (1850). 
 
174 PRESUMPTIVE EVIDENCE. [RULE 30. 
 
 II. An action is brought on 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. 1 
 
 III. It is proved that A. was bankrupt on August 31st. The presump- 
 tion five months later is that he continues so. 2 
 
 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. 3 
 
 II. In a settlement case, it is proved that a son is over age. It is 
 nevertheless presumed that he continues unemancipated as in the days 
 of his infancy, unless there is evidence to the contrary. 4 
 
 "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 the 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 Donahue v. Coleman, 49 Conn. 464 (1882). 
 8 Irvine v. Irvine, 5 Minn. 61 (1860). 
 
 * Re Lilleshall, 7 Q. B. 158 (1845). 
 
RULE 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. 1 
 
 In case I. it was said : " The evidence of a joint interest 
 in the plaintiffs was sufficient prima facie. 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 that previous to the publication of the libel, B. held a public 
 office. The presumption is that B. continued to hold it at the time of 
 the publication. 2 
 
 F. 
 
 I. The authority of a minor son to bind his father by contract is 
 shown 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. 3 
 
 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. 4 
 
 II. In Alabama, in 18S5, 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. 5 
 
 1 Cooper v. Dedrick, 22 Barb. 516 (1866) ; and see Anderson v. Clay, 1 Stark. 405 
 (1816) ; Clark v. Alexander, 8 Scott N. E. 161 (1844). 
 
 2 E. v. Bndd, 5 Esp. 230. 
 
 » McKenzie v. Stevens, 19 Ala. 692 (1851) ; Eyan v. Sams, 12 Q. B. 460 (1848). 
 
 * Eames v. Eames, 41 tf. H. 177 (1860). 
 
 6 Montgomery Plank Road Co. v. Webb, 27 Ala. 618 (1855). 
 
176 PRESUMPTIVE EVIDENCE. [RULE 30. 
 
 III. In 1870 a state of peace is proved to have existed in a certain 
 country in 1866. The presumption is that the country is still at 
 peace. 1 
 
 III. (a) . In 1870 a state of war is proved to have existed in another 
 country in 1860. 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. 3 
 
 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. 4 
 
 VI. A corporation is shown to have existed at a former date. The pre- 
 sumption is that it still exists. 6 
 
 VII. A. and B. are shown to be living in illicit relations at a previous 
 time. The illicit intercourse is presumed to continue. 6 
 
 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. 9 
 
 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. 10 
 
 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. 11 
 
 XIII. A suit involving certain property is brought before and heard 
 
 J Covert v. Gray, 34 How. Pr. 450 (1S66). 
 2 Id. 
 
 = People v. McLeod, 1 Hill, 407 (18-11). 
 4 Gelaton v. Hoyt, 1 Johns. Ch. 543 (1845). 
 
 • 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). 
 
 i Lum v. State, 11 Tex. (App.) 483 (1882). 
 
 s Page o. Findley, 5 Tex. 391 (1849). 
 
 » Stokes v. Macken, 62 Barh. 147 (1861). And we presume, also, that the law- 
 remains unchanged in the absence of proof to the contrary. Stokes v. Macken, 62 
 Barb. 149 (1861) ; State v. Patterson, 2 Ired. (L.) 356 (1812) ; Isabella v. Pecot, 2 La. 
 Ann. 387 (1847) ; Arayo v. Currell, 1 La. 540 (1830) ; Wilson v Smith, 5 Yerg. 379 (1625). 
 
 I" Kane v. Johnston, 9 Bosw. 154 (1862). 
 
 11 Baker v. State, 4 Ark. 56 (1842). 
 
EULE 30.] CONTINUANCE OF THINGS GENERALLY. 177 
 
 by Judge H. in the year 1868. It is proved that the judge was interested 
 in this property in 1867. The presumption is that he still is interested 
 in it. 1 
 
 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 office, unless it is shown to have been returned. 2 
 
 In case XII. it was 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., i Nev. 220 (1868). 
 
 2 Anderson v. Blythe, 54 Ga. 507 (1875). In aNorth Carolina case itwas held that 
 a holograph script was seen among the valuable papers and effects of the decedent 
 eight months before his death, was no evidence that it was found there at or after 
 his death. Adams v. Clark, 8 Jones (L.) 56 (1860) 
 
 12 
 
178 PEESUMPTIVE EVIDENCE. [RULE 30.. 
 
 If it was proved that the judge was interested in de- 
 fendant's claim 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 office during the whole 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 a 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, 1 and we think its application was rightfully 
 invoked by the counsel in the present case. If this 
 fieri 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 Greenl., sec. 41. 
 
RULE 31. J CONTINUANCE OF THINGS GENERALLY. 179 
 
 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. 
 
 Illustrations. 
 
 I. The insanity of a person prior to the 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. 1 
 
 II. A., in 1860, is shown to have been sane in 1850. The presumption 
 is that he is still sane. 2 
 
 III. In 1837, H. is inflicted with insanity, resulting from a violent 
 disease. There is no presumption that H. was insane in 1838. 3 
 
 ' ' 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. * * * A 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. 337 (1857) ; 
 Sprague v. Duel, 1 Clarke (N. Y.), 90 (1839) ; Cartwright v. Cartwright, 1 Phill. 100; 
 Me Li kins v. Lightner, 18 111. 282 (1857) ; Jackson v. Van Dusen, 5 Johns. 154 ; Ballew 
 d. Clark, 2 Ired. (L.) 24 (1841) ; Allen v. Public Administrator, 1 Bradf. 378 (1850) ; 
 Vance v. Com. , 2 Va. Cas. 133 (1818) ; State v. Spencer, 31 N. J. (L.) 196 (1846) ; State 
 v. Vann, 82 N. 0. 631 (1880) ; Hadfleld's Case, 29 How. St. Tr. 109; McAlister v. State, 
 17 Ala. 434 (1850) ; McLean t>. State, 16 Id. 672 (1849) ; Pierce v. State, 63 Ga. 365 (1874) ; 
 State v. Johnson, 40 Conn. 136 (1873) ; State v. Brown, 1 Houst. Cr. Cas: 639 (1878) ; 
 People v. March, 6 Cal. 543 (1856) ; Atty.-Gen. v. Parnlher, 3 Brown C. C. 441 ; Hall v.. 
 Warren, 9 Vesey, 605 ; Ex parte Holyland, 11 Vesey, 10 ; White v. Wilson, 13 Vesey, 
 *7; Grabill v. Barr, 5 Pa. St. 441 ; Hardin v. Hays, 9 Pa. St. 151 ; Ee Gangwere, 14 Pa. 
 St. 417 ; Gombault v. Public Admr., 4 Bradf. 226 ; Achey v. Stephens, 8 Ind. 411 ; Lilly 
 v. Waggoner, 27 111. 395 ; Staples v. Wellingtons 58 Me. 453 ; Puryear v. Rose, 6 Cold. 
 21 ; Porter v. Campbell, 58 Tenn. 81 ; Taylor v. Cresswell, 45 Md. 422 ; Weston v. Hig- 
 gins, 40 Me. 102 (1855) ; Rush v. Megee, 36 Ind. 69 (1871) ; State v. Willner, 40 Wis, 
 304 (1876). 
 
 ' Crouse v. Holman, 19 Ind. 30 (1862). 
 
 » Hix v. Whittemore, 4 Mete. 645 (1842) ; and see Titlow v. Titlow, 54 Pa. St. 
 216 (1867) ; Brooke v. Townshend, 7 Gill, 31 (1854) ; State v. Sewell, 3 Joues (L.), 245 
 (1855) ; People v. Smith, 57 Cal. 130 (1880) ; Chandler v. Barrett, 21 La. Ann. 68. And 
 there is no presumption against the sanity of one formerly a lunatic but restored to 
 reason. Snow v. Benton, 28 111. 306. 
 
180 PRESUMPTIVE EVIDENCE. [RULE 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 
 right 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 hahit of a person is pre- 
 sumed to continue as proved to be at a time past. 
 
 Illustrations. 
 I. It is held under a statute, that a gambler is incompetent to receive 
 letters of administration. It is proved that on November 9, 1848, M. 
 
KULE 32.] CONTINUANCE OF THINGS GENERALLY. 181 
 
 resided in Santa Fe, and followed the profession of a gambler. In July, 
 1850, M. applies for letters of administration on his mother's estate. 
 The presumption is that M. is still a gambler, and he is disqualified. 1 
 
 II. It is attempted to impeach the character of P., a witness at a trial. 
 A. and B. knew P., four years before, when he resided at another place. 
 They testify that P.'s character was then bad. The presumption is that 
 P.'s character remains the same. 2 
 
 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 
 change in the moral as well as the mental and social condi- 
 tion of man. When the existence of a person, 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- 
 ing 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 McMahonw. Harrison, 6N. T. 443 (1852). 
 
 « Sleeper v. Van Midcilesworth, 4 Demo, 431 (1S47) ; Wood v. Mathews, 73 Mo. 482 
 (1881). 
 
182 PRESUMPTIVE EVIDENCE. [RULE 33. 
 
 ability 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. 1 
 
 KTJLE S3. — Specific acts done in other cases do not 
 raise the 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. 2 
 
 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. 4 
 
 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. 5 
 
 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 takeW.& T.'s note for similar articles furnished to 
 one J. is inadmissible. 6 
 
 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 
 
 I Scott v. Coxe, 20 Ala. 294 (1852). 
 
 « Delano v. Goodwin, 41 N. H. 205 (1868). 
 
 » Wentworth v. Smith, 44 N. H. 419 (1862) ; Eobinson v. Railroad, 7 Gray, 502. 
 
 * Hollinghatn v. Head, 4 C. E. (N. s.) 3S8. 
 
 * True v. Sanborn, 27 N. H. 383 (1853). 
 
 5 Swainscott Machine Co. v. Walker, 22 N. H. 457 (1851). 
 
RULE 33.] CONTINUANCE OP THINGS GENERALLY. 18^ 
 
 on the same kind of work as A., and that these laborers were paid. This 
 evidence is irrelevant. 1 
 
 VII. B. claims that A. promised to pay his (B.'s) debt against C. 
 The fact that A. has previously, under similar circumstances, promised 
 D. to pay his (D.'s) debt against C. raises no presumption that he prom- 
 ised to pay B.'s." 2 
 
 " The plaintiff claims," it was said in case IV., " that the 
 jury should have been allowed to make the presumption of 
 fact of the unwholesomeness 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 be 
 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. H. 226 (1836) . 
 
 2 Phelps v. Conant, 30 Vt. 277 (1858). 
 
184 PRESUMPTIVE EVIDENCE. [RULE 34. 
 
 testimony," said the 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 
 has 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 individual being proved 
 he is presumed 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. He 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 and raises the presumption that he 
 gave the receipt in this case. 1 
 
 1 Eureka Ins. Co. v. Kobinson, 66 Pa. St. 256 (1867), overruling Sohoneman ». 
 Fegley, 14 Id. 376 (1850). 
 
RULE 34.] CONTINUANCE OF THINGS GENERALLY. 185 
 
 II. The question is whether notice of additional insurance had been 
 given by the insured to the insurer. The former is unable to speak posi- 
 tively but testified that it was always his custom to do so in such cases. 
 His evidence is admissible. 1 
 
 III. The question is whether C, the attorney for the plaintiff in a 
 former suit, had directed T., an officer 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. that 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 take 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. 2 
 
 IV. The question is whether a railroad has received certain cotton for 
 transportation. The company's agent testifies 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. 3 
 
 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.* 
 
 VI. 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. 5 
 
 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. 6 
 
 VIII. The question is whether a certain person was personally served 
 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. 7 
 
 1 Eureka Ins. Co. v. Robinson, 56 Pa. St. 356 (1867). 
 « Hine v. Pomeroy, 39 Vt. 211 (1S59). 
 
 • Vaughn v. Kaleigh, etc., E. Co., 63 N. 0. 11 (1868), ana see Kershaw v. Wright, 
 115 Mass. 361. 
 
 • Meighen v. Bank, 25 Penn. St. 288. 
 6 Ashe v. DeRosset, 8 Jones (L.) 240. 
 
 • Smith v. Clark, 12 Iowa, 32. 
 i Shove v. Wiley, 18 Pick. 558. 
 
186 PRESUMPTIVE EVIDENCE. [RULE 34. 
 
 IX. The question is whether a notice was mailed by a notary. From 
 the habit of the notary to mail notices in all cases the presumption 
 arises that it was. 1 
 
 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. 2 
 
 Case I., where a contrary opinion was expressed, was 
 overruled in case II. 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. Haekley, 
 5 Johns. 383; Bell v. Hagarstown Bk., 7 GUI. 227; Union Bk. i. Stone, 50 Me. 505; 
 Coyle ii. Gozzler, 2 Cranch C. 0. 625 ; Cookendorfer v, Preston, 4 How. 317. Butit 
 has been held in New York that 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 Coxe v. Derlnger, 82 Penn. St. 258 (1876). 
 
EULE 35.] CONTINUANCE OF THINGS GENERALLY. 187 
 
 actually took place, while he who 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 be 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 who 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 oaid them in time in 1832 and 
 1833." 
 
 KULE 35. — But a future continuance is never pre- 
 sumed. 
 
 Illustrations. 
 
 I. A. brings an action against B. for enticing his minor son to enlist 
 in 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. Seld, the former, as the law can not presume 
 that the war will continue to exist for three years or for any period. 1 
 
 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 
 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 b'e 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- 
 
 i Covert v. Gray, 3i How. Ft. 450 (I860). 
 
 a Strong v. Strong, 1 Abb. Pr. (N. 6.) 238 (1865). 
 
RULE 36.] CONTINUANCE OP THINGS GENERALLY. 189 
 
 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 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 does not 
 always continue to be confessor, and there is no experience 
 of mankind which warrants the conclusion adopted in this 
 case." 
 
 RULE 36. — An admission made by a party to a suit, 
 or his attorney, that a certain fact exists and need 
 not he proved, does not dispense with 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. 1 
 
 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 thai 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 
 
 i HoLeod v. Wakeley, 3 C. & P. 311 (1828). 
 
190 PRESUMPTIVE EVIDENCE. [EULE 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 1860 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 
 twenty-five 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 5, 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 5th. 3 
 
 IV. A. made a contract in 1860. In 1864 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. 5 
 
 " 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 
 
 l Erskine v. Davis, 25 111. 251 (1861). 
 s Erskine v. Davis, 25 Dl. 251 (1861). 
 » Bareli v. Lytle, 4 La. Ann. 557 (1849). 
 4 Taylor v. Cresswell, 46 Md. 422. 
 6 Murdock i>. State, 68 Ala. 567 (1881). 
 
RULE 38.] CONTINUANCE OF THINGS GENERALLY. 191 
 
 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 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 aa 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 things is weaker 
 than the presumption of innocence. 
 
 Illustration. 
 
 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 that he 
 owned this property in 1837, for the presumption is that he did not com- 
 mit a fraud.* 
 
 i Wright v. Orient Ins. Co., 6 Bosw. 270 (1S60) ; 1 Arnould on Ins. 686, sec. 255. 
 * Powell v. Knox, 16 Ala. 634 (1849). 
 
CHAPTEK IX. 
 
 THE PEESUMPTION OF LIFE. 
 
 RULE 39. — Love of life is presumed 1 (A.), and a person 
 proved to have been alive at a former time is pre- 
 sumed to be alive at the present time 2 until his 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. 3 
 
 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. 5 
 
 IV. A. is found drowned. The presumption is that the drowning was 
 accidental. 6 
 
 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. E. Co. v. Cragin, 71 111. 184 (1873). 
 
 " King v. Fowler, 11 Pick. 302 (1831) ; Innes v. Campbell, 1 Eawle, 375 (1829) ; Ful- 
 weiler v. Baugher, 15 S. & B. 45 (1826) ; Pennefather v. Pennefather, IrishEep. 6 Eq. 
 171 (1872) ; O'Gara v. Eisenlohr, 38 N. T. 296 (1868) ; Battin v. Bigelow, 1 Pet. C. C. 453 
 (1871) ; Hall v. Com., Hardin (Ey.), 480 (1808) ; Lowe v. Foulke, 103 111. 58 (18S2). 
 
 s Guardian Life Ins. Co.ri. Hogan, 80 111. 35 (1875). 
 
 « Way v. Illinois Central E. C, 40 la. 342 (1875) ; Morrison v. New York Cent. E. 
 Co., 63 N. T. 643 (1875). 
 
 6 Germain v. Brooklyn Life Ins. Co., 26 Hun, 604 (1882). But this presumption 
 does not extend to an insane man, found dead. Id. 
 
 Continental Ins. Co. v. Delpcuch, 82 Pa. St. 235 (1876). 
 
 (192) 
 
EULE 39. j THE PRESUMPTION OF LIFE. 193 
 
 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." 
 
 I. In 1831 the State of Georgia granted a tract of land to one T., who 
 had been a soldier in the revolutionary war. In an action brought in 
 1857 there is no presumption that T. is dead at this last date. 1 
 
 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 thatC. was alive.' 
 
 III. A patent of land is produced granted to 0. in 1695. It can not be 
 presumed that 0. was not alive in 1773. 3 
 
 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-offlce, nor is it in the city 
 directory. There is no presumption that H. is now (1843) dead. 1 
 
 _ V. 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. 3 
 
 VI. J. E. T., a young 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. 6 
 
 1 Watson v. Tindal, 21 Ga. 494 (1858). 
 
 2 Letts v. Brooks, Hill & Denio, 361 (1842). 
 » Hammond v. Inloes, 4 Md. 140 (1853). 
 
 « Ee Hall, 1 Wall. jr. 85 (1843). 
 
 » Wilson v. Hodges, 2 East, 313 (1862). 
 
 8 Ee Tindall's Trast, 30 Beav. 151 (1861). 
 
 13 
 
194 PRESUMPTIVE EVIDENCE. [RULE 39. 
 
 VII. In 1732 a deposition of a witness made in 1682 is offered. There 
 being no proof that the witness is dead, the presumption is he that is still 
 alive, and the deposition is inadmissible. 1 
 
 VIII. A. is shown in a case tried in 1837 to have been alive in the year 
 1034. The law will not infer that A. is dead without some evidence. 2 
 
 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 
 Dinety and one hundred years we can not say that others 
 have died at an earlier age without some evidence on the 
 subject." In a subsequent case in the same State 3 the 
 court was equally contradictory. " Though there is no 
 legal 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 1868. * 
 
 Incase IV. Mr. Justice Baldwin said: "The life of a 
 person once shown to exist is intended to continue till th_e 
 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 which life is 
 occasionally — nay, not unfrequently, prolonged. The 
 
 1 Benson «. Olivo, 2 Strange, 920 (1732). 
 
 2 Atkins v. Warrington, Best Ev. 412 ■ Chitty Pldg. 616. 
 s Spriggu. Moale, 28 Md. 508 (1S6S) 
 
 * And see Jarboe v. McAlee 7 B. Monr. 2S2 (1S17). 
 
RULE 39.] THE PRESUMPTION OF LIFE. 195 
 
 court can not therefore presume, as of course, that Hall has 
 not reached it. Lord Hale has indeed said that it shall be 
 presumed life will not exceed ninety-nine years, 1 and it 
 may be inferred that a man, if of any age already, will not 
 live eighty years besides ; 2 but Chief Baron 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. Neither does the circumstance 
 that 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 you 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 8 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 years before. * * * 
 Is the case essentially changed by the inquiries made at the 
 post-office? This difficulty occurs — that there is nothing 
 to 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 Weale v. Lomer, Pollex. 55. 
 
 2 Nappera. Saunders, Hutton, US; Keeblo's Case, Littleton, 37 J. 
 
 3 Webster v. Birchmore. 
 
196 PRESUMPTIVE EVIDENCE. [RULE 39. 
 
 absence of the name from the directory. Indeed in the 
 insignificance of advanced old age, a man has generally 
 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 a death, -which if it has occurred, has occurred close to 
 us, and since 1822. Or did H. 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, 1 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 New 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 nolle, 4C1. 
 
RULE 41.] THE PRESUMPTION OF LIFE. 197 
 
 alleged to be dead has left the place of his domicil, and 
 had not been heard of for seven years or more. No such 
 proof was given or offered in the present case." x 
 
 RULE 40. — Death may be proved by reputation, by 
 hearsay, or by evidence of facts inconsistent with the 
 theory of the existence of life. 2 
 
 Illustrations. 
 
 I. The question in 1869 is whether H., 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. 3 
 
 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 
 obtained, and no account of five of them could be had. This is held 
 sufficient, seventy years having elapsed, ,to justify the inference that 
 they were dead without lawful issue. 3 
 
 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. 5 
 
 RULE 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. 6 
 
 Illustrations. 
 
 I. W. emigrated from Australia to Ireland in 1854, and continues to 
 communicate with his relatives in Ireland until 1856. Since then nothing 
 
 1 Duke of Cumberland v. Graves, 9 Barb. 608 (1850). 
 
 2 Anderson «. Parker, 6 Cal. 197 (1856) ; Jackson v. Etz, 5 Cow. 319 (1826) ; Scheel 
 v. Eidman, 77 111. 304 (1872) ; Bailey v. Bailey, 36 Mich. 185 (1877) ; John Hancock 
 Ins. Co. v. Moore, 34 Mich. 41 (1876) ; Crouch v. Eveleth, 15 Mass. 305 (1818) ; Kuloff 
 v. People, 18N. Y.129 (1858). 
 
 8 Kinghouse v . Keever. 49 111. 470 (1869). 
 
 « King». Fowler, 11 Pick. 302 (1831). 
 
 • Allen v. Lyons, 2 Wash. C. C. 475 (1811) ; Thomas v. Visitors of Frederick Co. 
 School, 7 Gill &■ J. 385 (1835). 
 
 8 McComb v. Wright, 5 Johns. Ch. 263 (1821) ; Hammond v. Inloes, 4 Md. HO 
 (1853) ; Stinchfleld v. Emerson, 52 Me. 465 (1864) ; Peterkin v. Inloes, 4 Md. 175 (1853) ; 
 Sprigg v. Moale, 28 Id. 506 (1868) ; Emerson v. White, 29 N. H, 482 (1854) ; Oldnall v. 
 Deakin, 3 C & P. 404 (1828) ; Banning v. Griffln, 15 East, 293 ; Richards v. Kichards, 
 Id. 294 (1812) ; Oldham v. Wolloy, 8 B. & C. 22 (1828) ; Dunn v. Snowden, 32 L. J. (Ch.) 
 104 (1662) ; Hays v. Tribble, 3 B. Monr. 109 (1842). 
 
198 PRESUMPTIVE EVIDENCE. [KULE 42. 
 
 has been heard of him, though inquiries had been made. When he left 
 Ireland he was unmarried. In 1866 the presumption is that W. was 
 dead without issue. 1 
 
 II. It is proved that D. E., with a wife and one child, left his home in 
 1824. He has not, in 1854, been heard of. The presumption is that D. 
 B. is dead, 2 but there is no presumption that he has no issue living. 8 
 
 III. A married woman went from Ireland to America in 1847 with her 
 husband and seven children. She dies in America in 1866. There is no 
 presumption in 1876 that all the seven children have died without issue. 4 
 
 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 heir. 
 
 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 been 
 added, as the presumption is that P. left heirs. 5 
 
 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 law 
 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 
 
 l Re Webb, Irish Rep. 5 Eq. 235 (1870). 
 
 s See Rule 43 
 
 a Campbell v. Reed, 24 Term. St. 498 (]S55). 
 
 4 Mullaly v. Walsh, Irish Rep. G C. L. 315(1872). 
 
 « Harvey v. Thornton, 14 111. 217 (1332.) 
 
RULE 42. J THE PEESUMPTION OF LIFE. 199 
 
 dying intestate shall go to the next of kin, however remote 
 in degree; and aliens and non-residents are as capable of 
 taking the estate as citizens or residents. It is difficult, 
 therefore, to imagine a case, unless it be that of a bastard, 
 dying 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 
 brought 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." 
 
CHAPTEE X. 
 
 THE PRESUMPTION OF DEATH. 
 
 KUIiE 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. 1 
 
 Illustrations. 
 
 I. In the middle of November, 1846, 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 
 
 l Stevens v. McNamara, 36 Me. 176 (1853) ; Doe v. Flanagan, 1 Ga. 538 (1846) ; 
 Spears v. Barton, 31 Miss. 554 (1856) ; Craig v. Craig, 1 Bailey (Eq.) (S. 0.) 102 (1830) ; 
 Clarke v. Cummings, 5 Barb. 353 (1849) ; Tilly v. Tilly, 2 Bland Ch. 444 ; (1840) ; Foulks 
 v. Ehea, 7 Bush, 568 (1870) ; Ashbury v. Sanders, 8 Cal. 62 (1857) ; Godfrey v. Schmidt, 
 
 1 Cheves (S. C), 57 (1810) ; Moffett v. Varden, 5 Cranch C. C. 658 (1840) ; Anonymous, 
 
 2 Hayw. (S. C.) 134 (1801) ; Bowden v. Evans, 2 Hayw. (S. C.) 222 (1802) ; Crawford v. 
 Elliott, 1 Houst. (Del.) 465 (1855) ; Hancock v. American Life Ins. Co., 62 Mo. 26 
 (1876) ; Smith v. Knowlton, 11 N. H. 196 (1840) ; King v. Paddock, 18 Johns. 141 (1820) ; 
 Bradley v. Bradley, 4 Whart. 173 (1838) ; Loring v. Steinman, 1 Mete. 210 (1840) ; 
 Spears v. Burton, 31 Miss. 547 (1856) ; Forsaith v. Clark, 21 N. H. 424 (1850) ; Eosenthal 
 v. Mayhugh, 33 Ohio St. 155 (1877) ; Eice v. Lumley, 10 Id. 596 (1857) ; Youngs v. Heff- 
 ner, 36 Id. 232 (1880) ; Mayhugh v. Eosenthal, 1 Cinn. Sup. Ct. 492 (1871) ; Holmes v. 
 Johnson, 42 Pa. St. 159 (1362); Innis v. Campbell, 1 Eawle, 375 (1829); Puckettn. 
 State, 1 Sneed, 356 (1853) ; Primm v.. Stewart, 7 Texas, 183 (1851) ; Ee Hall, 1 Wall. jr. 
 85 (1843) ; Woods v. Woods, 2 Bay, 476 (1802) ; McNair v. Eagland, 1 Dev. (Eq.) 533 
 (1830) ; Davis v. Briggs, 7 Otto, 628 (1878) ; Eust v. Baker, 8 Sim. 443 (1837) ; Onomaney 
 v. Stlllwell, 23 Beav. 328 (1856) ; Ewing v. Savery, 3 Bibb, 235 (1813) ; Adams v. Jones, 39 
 Ga. SOS (1869) ; Proctor v. McCall, 2 Bailey (S. C), 134; 23 Am. Dec. 134 (1831) ; Lajoye 
 v. Primm, 3 Mo. 629 (1834) ; Hoyt v. Newbold, 45 N. J. (L.) 219 (1883). In Naisor v. 
 Brockway, Eich. 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 
 seven years, the presumption is that he died at the commencement of 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 
 be presumed 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 PRESUMPTION OF DEATH. 201 
 
 received of the launch or any of its crew. On December 1, 1846, a grant 
 of land was made to Captain M. The presumption is that Captain M. 
 was alive on December 1, 1871. 1 
 
 II. E. died on September 9, 1851, leaving a legacy 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 him. The presumption is that W. was alive on September 9, 1851. 2 
 
 III. In March, 1861, 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, 1801. M. is presumed to have 
 been alive at that time, and the administrator can not recover. 3 
 
 IV. In 1866, A. claiming as the wife of N., brought an action for 
 dower in land which the defendant claimed by virtue of a deed made in 
 1856. It is proved that N. has not been heard of since March 21, 1862. 
 The presumption is that he was dead on March 22, 1859. 4 
 
 V. C. died December 4, 1852, 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, and was not subsequently heard of. If 
 
 The chancellor afterward found that he had drawn the line too closely, for he adds 
 in a note to the report of the case : " Memorandum. After this decree and after the 
 distribution, Philip Naisor Brockway, as I am informed, made his appearance in 
 Charleston in good health." But see Chapman v. Cooper, 5 Eich. (L.) 152 (1852) . The 
 rule adopted in England is different. 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 
 a matter 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 party at any particular time within that period 
 lies on the person who claims a right resting on the establishment of either of these 
 facts. Doe v. Nepean, 5 B. & Ad. 36; Knight v. Nepean, 2 M. & W. 895 ; Be Phene's 
 Trusts, L. E. 5 Ch. App. 139; Ee How, 1 Sw. & T. 53 (1S58) ; Thomas v. Thomas, 2 Dr. 
 &Sm. 298 (1864) ; Re Benham's Trusts, 37 L. J. (Ch.) 265 (1863) ; Lambe v. Orton, 29 Id. 
 286 (1860) ; Ee Peck, 29 L. J. (P. & M.) 95 (1860) . But the English cases are not in ac- 
 cord on this point, as will be seen by consulting E. v. Wellshire, 6 Q. B. Div. 366 ; Re 
 Corbishley's Trusts, 14 Ch. Div. 846 ;G111 v. Manley, 16 Ir. L. T. 57; Wilson v. Hodges, 
 2 East, 313 ; Doe v. Jesson, 6 Id. 80 ; Rowe v. Hosland, 1 W. Bl. 404. A few cases in 
 the American courts follow the English rule. State v. Moore, 11 Ired. (L.) 160 (1850) ; 
 Spencer v. Roper, 13 Id. 333 (1852). Proof of a rumor that the party was alive 
 within the seven years that turned out to be untrue rather strengthens instead of 
 weakens the presumption of death. Moore v. Parker, 12 Ired. (L.) 123 (1851). 
 
 1 Montgomery v. Bevans, 1 Sawy. 660 (1871). 
 
 2 Eagle's Case, 3 Abb. Pr. 218 (1856) ; Bradley v. Bradley, 4 Whart. 173 (1S3S) ; 
 Whiteside's Appeal, 23 Pa. St. 114 (1854). 
 
 3 Hancock v. American Life Insurance Co., 62 Mo. 26 (1876). 
 « Whiting v. Nicholl, 43 111. 235 (1S67). 
 
202 PRESUMPTIVE EVIDENCE. [EULE 43. 
 
 E. died before C. the legacy lapsed. If he survived in 1862 (when the 
 suit was brought) , it belonged to him. If he died after C. it belonged to 
 his next of kin. The presumption is that E. did not die till 1856, and the 
 legacy goes to his next of kin. 1 
 
 VI. 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. 2 
 
 VII. A woman was sued on a promissory note dated in 1808. She 
 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. 3 
 
 VIII. S. disappeared at an unknown date in the year 1809. There is 
 no presumption that S. was dead on April 29, 1816.* 
 
 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. 
 
 In one case an English vice-chancellor expressed 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. Canfleld, 15 N. J. (Eq.) 119 (1862). 
 
 - Burr v. Sim, i Whart. 150 ; 33 Am. Dec. 50 (1838) 
 
 a Hopewell v. De Tmney, 2 Camp. 113 (1809). 
 
 4 Dean v. Bittner, 77 Mo. 101 (1882). 
 
 J Shadwell, V. C, in Watson v. England, 14 Sim. 28. 
 
KULE 43. J THE PKESUMPTION OP DEATH. 203 
 
 f 
 
 elusion. To go abroad a hundred and fifty years ago, was 
 attended in the first place with greater danger, and in the 
 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 Mr. 
 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 heard 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 
 pi'oved, 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 Phene Trusts, that 
 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 PRESUMPTIVE EVIDENCE. [RULE 43. 
 
 1860, 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 some time, 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 
 
RULE 43.] THE PRESUMPTION OF DEATH. 205 
 
 on its face, and at the same time refusing admission to a 
 deed except upon full proof of its execution, which 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 proof." 
 In case II. it was said: " What is a court or jury to do 
 when there are 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 are 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 rule 
 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 years' absence without intelligence. The practical 
 effect of these two rules, if both are to be taken as subsist- 
 ing, is that whenever the law is invoked as to the rights 
 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 
 are to be administered as if he had died on that day. 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 PRESUMPTIVE EVIDENCE. [EULE 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 
 sufficient 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 liberty 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 her husband 
 had not been heard of from the 21st of March, 1852, to 
 the 21st of March, 1859, the presumption of law then 
 comes in that he was dead on the 22d of March, 1859, 
 being seven years from the time he was last 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 
 legal 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 being heard of. The court said: "It is urged 
 that although at the end of seven years the law presumes 
 that the absent party is dead, there is no presumption when 
 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. * * * In 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 
 
203 PRESUMPTIVE EVIDENCE. [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 the /act 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, independent 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. The presumption of death which arises 
 upon the 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 
 
EULE 43, J THE PRESUMPTION OF DEATH. 209 
 
 law regards neither as certain. It simply declares that the 
 party shall be presumed to be dead at the expiration of the 
 seven years, whenever his death shall come in question. 
 The language of the statute, as well as that of 6 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 with 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 
 n 
 
210 PRESUMPTIVE 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 English 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- 
 tinues till it is displaced by a more potent one, which how- 
 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 DEATH. 211 
 
 death was still sooner; but these, where they operate, 
 introduce a distincb and dissimilar principle. What seems 
 to me to be a palpable error of Chief Justice Denman in 
 Knight v. Nepean, on the authority of which the present 
 case was ruled below, is the view he took of the presump- 
 tion of death, from the efflux of a definite period, as being, 
 in some measure, a natural one, operating 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, in regard to the presumption of payment, 
 from the lapse of time, which were noticed in Henderson 
 v. Lewis. 1 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 sufficient 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 
 
 l 9 S. & K. 384; 11 Am. Dec. 732. 
 
212 PRESUMPTIVE EVIDENCE, [RULE 44. 
 
 never presumed from absence ; therefore he who claims an 
 estate on account of a man' s death is always held to prove it. 
 An absentee is always reputed living until his death be proved 
 or until one hundred years have elapsed since bis 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." x 
 
 RULE 44. — An *' absentee " within Rule 43 is one who 
 has left his 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 
 raise 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 residence, home, or domicil 2 (B). 
 
 Illustrations. 
 
 A. 
 
 I. E. was married to C. in 1847, and lived with him for three years in 
 L., when, on account of his dissipated habits, she left him, and went to 
 live in another place. Here, in 1861, she is married to T., believing 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. 3 
 
 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; 5 Am. Dec. 727 (1812) ; Wntson o. Tindal, 
 24 Ga. 494 (1868). 
 
 2 Wentworth v. Wentworth, 71 Me. 83 (I860) ; Bailey v. Bailey, 36 Mich. 185 (1877) ; 
 Brown v. Jewett, 18 N. H. 230 (1846). 
 
 " Com. v. Thompson, 11 Allen, 25 (1865). 
 * Garwood v. Hasings, 38 Cal. 229 (1869). 
 
RULE 44.] THE PRESUMPTION OP DEATH. 213 
 
 ever established his residence in H. There is no presumption that A. is 
 dead. 1 
 
 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. forover seven years. 
 There is no presumption from this that J. is dead. 2 
 
 In case I. the trial judge instructed 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 marrying and cohabiting with 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 
 years 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, would 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. * * * We 
 see no sufficient ground for any presumption of the death of 
 
 1 StincMeld v. Emerson, 52 Me. 465 (1860). 
 
 = McKee v. Copelin, 2 Cent. L. J. 813 (1875). "Although persons absenting them- 
 selves beyond 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 ba presumed." 
 Spurr v. Trimble, 1 A'.K. Marsh. 279 (1818). Presumption of death will not be made 
 ns to one who has acquired a home and domicil in another state ; and this is known 
 in the Stato of his former residence. Smith v. Smith, 49 Ala. 156 (1873). 
 
214 PRESUMPTIVE EVIDENCE. [RULE 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 
 period 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, under an 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. She 
 was heard of in 1820 through letters received from her 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 -five years 
 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 from a stranger in New York soliciting 
 
 1 McCartee v. Camel, 1 Barb. Ch. 463 (1S46). 
 s Grey v. McDowell, 6 Bush, 482 (]S0S). 
 
BULE 45. J THE PRESUMPTION OF DEATH. 215 
 
 aid for A., and stating that he had changed his name to B. Three 
 months later A.'s wife sent a letter to A., addressed to B., but the person 
 to whom it was Intrusted could not find him. He was not heard of any 
 more, and no subsequent inquiries were made. There is no presumption 
 that 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 he had a known and fixed residence in a foreign country 
 when he was last heard from, he ought not in justice to be 
 presumed dead without some evidence of inquiries having 
 been made for him at such known place 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 the mere circumstance that he 
 has fixed his domicil abroad, and has not been heard of at 
 the 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 heard 
 of him " within Rule 43 is not confined to a particular 
 class; they may be relatives or strangers. 2 
 
 Illustrations. 
 
 I. The question is whether A., who went from Massachusetts to Cali- 
 fornia in 1850, is living in 1860. Evidence that various persons — not 
 relatives of his — had heard from him in 1856 is admissible. 3 
 
 i Be Creed, 1 Drewry, 235 (1852) . But 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 sufficient prima facie evidence. Smith v. Smith, 5 N. J: Eq. 
 484 (1846) ; and see, Osborn v. Allen, 26 N. J. L. 388 (1857) ; Wambaugh v. Sohencli. 8 
 N. J. L. 167 (1807). 
 
 2 Wentworth v. Wentworth, 71 Me. 73 (1880) ; Bailey v. Bailey, 36 Mich. 185 (1877). 
 
 ' Flynn v. Coffee, 12 Allen 133 (1866) ; Doe v. Deakin, 4 B. & Aid. 433 (1821). In 
 Clarke v. Cummings, 5 Barb. 353 (1849), it was said: "What is a reasonable search 
 
21(1 PRESUMPTIVE EVIDENCE. [eULE 46. 
 
 In case I. it was said that there is no rule of law which 
 confines 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 heard of " within Rule 43 means 
 that none of the "persons" 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. 
 
 Illustration 
 
 I. The life of N. being insured in a life insurance company, an action 
 was brought on the policy in 1874, and the question was whether N. was 
 then dead. He had left his home in England for Australia in 1867, 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.hadnot "been heard of" within the rule. 1 
 
 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 the terms of the 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 Inquiry. If it were proved that the tenant were the only relation of the 
 person whose life was'in question living in the vicinity of the lands, then an inquiry 
 of the tenant would be enough ; " and see Gilleland v. Martin, 3 McLean, 190 (1841). 
 1 Prudential Assurance Co. 17. Edmonds, 2 App. Oas. 187 (1877). 
 
BULE 46. J THE PRESUMPTION OF DEATH. 217 
 
 say that he has never been heard of when every member 
 of the family states that they heard that which is now 
 stated." On appeal this was held error. " The direc- 
 tion," said Lord Chancellor Hatherly, " seems to me to 
 come to this : In the first place, if the jurymen believed 
 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 he 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 would 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 be the reasonable inference from that language ; but I 
 think it becomes clearer as you go on, that that would be the 
 interpretation that would 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 you 
 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 you find that 
 all those relatives did hear of him. Of course, in reality, 
 
218 PRESUMPTIVE EVIDENCE. [RULE 46. 
 
 that turns upon whether they believed Mrs. C. or not, and 
 whether the relatives having heard of him 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, I 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 Robert 
 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. J THE PRESUMPTION OF DEATH. 219 
 
 v. Andrew, 1 that it is necessary, in order to raise the pre- 
 sumption, that there should have been aninquiry and search 
 made for the man among those who, if he 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 things 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 
 that he ' 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 left 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 PRESUMPTIVE EVIDENCE [RULE 46. 
 
 him, and all the others had heard it from her, although that 
 unexplained and uncontradicted statement affected the onus, 
 yet as soon as it was made out by satisfactory evidence that 
 she was mistaken, the hearing from her was gone, and the 
 presumption would remain as it was before. Now, 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 something which 
 happened 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- 
 
EULB 4 G.J THE PRESUMPTION 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 ; every one 
 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, who 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. * * * I 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. * * * The learned 
 chief baron says : There is no evidence ; had he said. Unless 
 you think that the young woman's recognition was mis- 
 taken, there is no evidence which would raise the pre- 
 sumption ; but if it is proved afiirmatively to your minds 
 that she was mistaken, there is evidence which would raise 
 the presumption ; — had he said that, it would have been 
 all right." 
 
222 PRESUMPTIVE EVIDENCE. [RULE 49. 
 
 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. 
 
 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 from him 
 from parts of Illinois until 1849, since when he was never heard of. 
 The presumption is that C, died in 1856. 1 
 
 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 
 was 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 on a 
 sound and logical foundation. 
 
 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. 
 
 RULE 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 WiTiship v. Conner, 42 N. H, 344 (1861.) 
 
 2 Webster v. Birchmore, 13 Ves. 362 (1807) ; and see Eagle's Case, 8 Abb. (Pr.) 218 
 (1836) ; or was of grossly intemperate habits when last heard of. btonvenel v. 
 Stephens, 2 Daly, 333 (1S6S). 
 
RULE 50.] THE PRESUMPTION 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 
 H. died in his father's lifetime. 1 
 
 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." 
 This does not rebut the presumption that he is alive, the phrase "bad 
 health" not being specific enough. 2 
 
 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 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 3 the health was very bad — the chancellor 
 speaks of it as desperate." 
 
 RtHLE 50 — That within that time he embarked on a 
 vessel which has not since been heard of and is long 
 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 month. The vessel ou which M. sailed 
 
 1 Danby v. Danby, 5 Jur. (N. S.) 54 (1859). 
 
 2 Be Hall, 1 Wall. Jr. S3 U843). 
 » Webster v. Birobmore. 
 
224 PRESUMPTIVE EVIDENCE. [RULE 50. 
 
 never reached B. The question being, in 1845, whether M. is now alive, 
 the presumption is that he is dead. 1 
 
 II. On March 11, 1841, J. sailed from New York to Liverpool on the 
 steamship 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 world. 
 The presumption at the end of this time is that the vessel was lost, and 
 that those on board, including Captain T., have perished. 3 
 
 TV. 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 York 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 White 8. Mann, 26 Me. 363 (1841) ; Patterson v. Black, Park, on Ins. 919 ; Watson 
 v. Maxwell, 1 Stark. 121 (1S15) ; Eo Hutton, 1 Curt. 595 (1837) ; Ke Cook, Ir. Hep. 5 Eq. 
 240 (1871) ; Eagle's Case, 3 Abb. Pr. 218 (1836). 
 
 2 Oppenheim v. De Wolf, 3 Sandf. Ch. 571 (1846). 
 
 8 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 York correspondent of the Boston Journal states 
 that some three years ago the report reached New York that the ship Helena was 
 lost. Her commander, Captain Thompson, had with him his eon, and left in New 
 York his wife and several children. His cargo was a load of coolies; and it was 
 believed that the cargo had risen and murdered the crew. The insurance office 
 paid the policy, and an administrator was 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 that they 
 passed and hailed a vessel bound for China, which had on board Captain Thompson 
 and crew of the Helena. The 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 the 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 (1865). 
 
KULE 50.] THE PRESUMPTION OF DEATH. 225 
 
 has since been heard of the vessel or its crew. The presumption is that 
 M. is dead. 1 
 
 In case I. it was said that insurance companies, recog- 
 nizing the inference, were in the habit of paying insurance 
 on vessels after the lapse of a year when a vessel sailed 
 from an American to a European port and was not heard 
 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 part 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 H. 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, 1841. 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 beyond 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-fated 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 tolerably fair pas- 
 sage would have carried her to England before the last day 
 
 15 l Ee Main, 1 Sw. & Tr. 11 (1858). 
 
22.1 PRESUMPTIVE EVIDENCE. [RULE 50. 
 
 of March, 1841. 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 waiting 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 
 
EULE 50. J THE PRESUMPTION OF DEATH. 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 time 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. 1 * * * The 
 authorities fully sustain my conviction that the steamer 
 President must be deemed to have been lost before May, 
 1841." 
 
 In case III. 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 where nothing is known to the contrary, until 
 the natural limit of life has been passed. It is possible 
 that the defendant may be alive, but that 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 
 years 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 
 
 i As to the presumption of the loss of a vessel under Biich circumstances, see 
 Houseman v. Thornton, Holt 3. P. 242; Hewby v. Reed, Park, on Ins. 85; Brown v. 
 Keilson, 1 Caines, 525. 
 
228 PRESUMPTIVE EVIDENCE. [RULE 50. 
 
 of the great groups through which the vessel of the defend- 
 ant must 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 claim 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 tp the court have been offered 
 in previous cases; 1 but were not allowed to prevail 
 against the presumption which was deemed the proper and 
 reasonable one underthe circumstances. Seventeen months 
 have gone by 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 years 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 
 the longest time of a voyage may be presumed to be lost; 
 and it follows as a consequence that it will also be inferred 
 
 i See Twemlow v. Oswin, a Camp. 85 ; Green v. Brown, 2 Strange, 1199 
 
RULE 50. J THE PRESUMPTION 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 of 
 hope was gone, then the conclusion was that those not heard 
 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. In 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 November 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 
 
 1 Re Smyth, 28 L. J. (P. &M.) 1 (1858). 
 
230 PRESUMPTIVE EVIDENCE. [RULE 51. 
 
 II. On October 20, 1858, B. sailed in command of a vessel from Deme- 
 rara to London. Nothing was afterward heard of the vessel or crew. 
 No inquiries had been made at Demerara. There is no presumption in 
 March, 1859, that B. was dead. 1 
 
 In case I., Creswell, J., said: " I do not find in the affi- 
 davits any 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. — That at some time within that period he 
 has encountered a "specific peril," which includes 
 not the ordinary dangers of travel or navigation 2 
 (A), but some unusual or extraordinary danger (B). 
 
 Illustrations. 
 A. 
 
 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 
 from the time he sailed from New York. This is error. 3 
 
 II. In September, 1828, S. sailed as one of the crew of a schooner 
 from Portsmouth, N. H., 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 (1856). "The ordinary perils of navigation are 
 undoubtedly general and not special perils." Lancaster v. Washington Life Ins. 
 Co., 62 Mo. 127(1876); Lewis v. Morley, 4 Dev. & B. (L.) 323; 31 Am. Deo. 379 (1839); 
 Miller v. Beates, 3 S. & P. 490 ; 8 Am. Dec. 658 (1817). 
 
 » Burr v. Sim, 4 Wheat. 150; 33 Am. Dec. 50 (1838). 
 
RULE 51. J THE PRESUMPTION OF DEATH. 231 
 
 letter was received from him dated April, 1829, but neither S. nor the 
 vessel were ever heard of again. There is no presumption that S. was 
 not alive in September, 1831. 1 
 
 III. C. sailed from Boston in 1826 for the West Indies, since which 
 time he was not heard of. He left money in the hands of M., who in 
 April, 1828, loaned it to J. J. pleaded that C. was dead at the time the 
 loan was made. Held, that this could not be presumed from his sailing 
 on the voyage and being unheard of . a 
 
 IV. S. left the Sandwich Islands in a bark for Manda, May 2, 1855. 
 The barb and those on board were not subsequently seen or heard of. 
 There was no presumption in September, 1856, that S. was dead. 3 
 
 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, strrpped 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. Knowlton, 11 N. H. 192 (1840). 
 
 2 Newman v. Jenkins, 10 Tick. 615 (1830). 
 8 Ashuury v. Saunders, 8 Cal. 62 (1857). 
 
232 PRESUMPTIVE EVIDENCE. [RULE 51. 
 
 We are 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 4, 1854, for a port in South America. Neither vessel 
 nor crew were subsequently heard of. A violent storm prevailed along 
 the coast in that year. The question arises whether J. was alive in Sep- 
 tember, 1857. The presumption is that he was dead. 1 
 
 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. 3 
 
 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 — presximptio 
 legis tantum, and may be disproved, either by direct or cir- 
 
 i Gibbes v. Vincent, 11 Rich. (L.) 323 (1858) ; Learned v. Corley, 43 Miss. 709 (1870) ; 
 and see Re Norris, 1 Sw. & Tr. 6 (1858) ; Watson v. King, 1 Stark. 121 (1815). 
 2 See Eagle's Case, 3 Abb. (Pr.) 218 (1836). 
 8 Lancaster v. Washington LiJe Ins. Ce., 62 Mo. 127 (1876). 
 
EULE 52.] THE PRESUMPTION OF DEATH. 233 
 
 cumstantial 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, but from 
 the prevalence of a violent storm on the track of his vessel 
 about the time he sailed, and that neither The Edmondson, 
 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) op 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 adjoining State on business, arrived 
 there in safety, and was seen by an acquaintance on the street about 
 three p. m. of the day he 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. 1 
 
 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 be 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 Mutual Ins. Co., 26 la. 170 (1868) ; 28 Id. 12 (1870) ; Garden 
 v. Garden, 2 Houst. (Del.) 574 (1863). In 1856 M. disappeared Irom home. In an 
 action brought in 1864, it was proved that M. had not since been heard of. It was 
 also proved that M. before his disappearance had declared his intention of commit- 
 ting suicide. Held, that the presumption was proper that his death occurred about 
 the time of his disappearance. 
 
234 PRESUMPTIVE EVIDENCE. [RULE 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 
 having 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 mouths, upon 
 the ground 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 
 suggested 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 In April and October. These were his chief maintenance, which he 
 
RULE 52.] THE PRESUMPTION OF DEATH. 235 
 
 generally squandered in dissipation as soon as received. He applied for 
 and received his dividends in April, 1860, and was last seen in August of 
 the same year, very sick. He did not apply in October, and was not sub- 
 sequently seen or heard of. The question was, in 18G9, whether he had 
 died before November, 1860. The presumption is that he had. 1 
 
 II. In March 25, 1866, 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, 1866. In a proceeding in 
 1875 the presumption is that she was dead after June, 1866. 2 
 
 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. 3 
 
 In case I. it was said: " I quite adhere to the general 
 rule laid down in Doe v. N~epean and many other cases, 
 that where a person has not been heard of for seven years 
 the onus probandi of showing that he died at any particular 
 period within the seven years lies upon the person setting 
 up such earlier death. In the case of lie Henderson's 
 Irusts,* which has been referred to, the master of the rolls 
 came to the conclusion 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 
 sufficient 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. How 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 Ee Beasney, L. E. 7 Ec[. 498 (1869). 
 
 a Hickman v. Upsall, 4 Ch. Div. 147 (1876) ; Hickman v. Upsall, 2 Id. 619 (1876) ; 
 Hickman v. Upsall, L. R. 20 Eq. 139 (1876). 
 « RoAckerman,3 Redi.521 (1877). 
 
236 PRESUMPTIVE EVIDENCE. [RULE 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." 
 
RULE 53.] THE PRESUMPTION OF DEATH. 237 
 
 In case III. it was said that his entire dependence upon 
 the income, his regular and frequent calls for the same 
 before his departure, and his failure to call thereafter, all 
 combined to justify the presumption. 
 
 RULE 53. — But the presumption of death at the 
 expiration of seven years from being last heard of, 
 does not arise where it is improbable that the absentee^ 
 even if alive, would or could have been heard of at, 
 or would or could have communicated with, his resi- 
 dence, home or domicil (A), or where in other judicial 
 proceeding's the absentee is recorded as having been 
 alive subsequently to the end of the seven years (Bj. 
 
 Illustrations. 
 
 I, In 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. 
 No reply was 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. 2 
 
 1 Bowen v. Henderson, 2 Sim. & G. 360 (1854). 
 In McMahon v. MeElroy, Ir. Eep. 5 Eq. 1 (1869), an Irish case, it was said: 
 "The circumstances of the present case are not such as to render it safe to make 
 that presumption at present. Hugh Morgan left Ireland for America some lime 
 before the year 1859 ; resided there for some years ; married there ; came back to 
 Ireland with his wife in 1859 for a temporary purpose only ; he sold all his prop- 
 erty in Ireland, and after a few months, returned to America whither his wife and 
 son followed him. It is contended, however, that because he 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 — 
 to put an extreme case — no relatives here, and is not heard of for seven years, is Ihe 
 presumption, therefore, to be made of his death? I do not think the rule would 
 apply to such cases." 
 
 " Watson v. England.HSim. 28 (1844). 
 
238 PRESUMPTIVE 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 I860. 1 
 
 IV. S. died in August 1858. W., his father, left England for Australia 
 in 1849, 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." 
 W. was never subsequently heard of. There is no presumption that he 
 died before S. 2 
 
 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. 3 
 
 In case I. it was said that 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 with her friends. If I am right in this 
 view, it follows that the presumption 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 Mileham's Trust, 15 Beav. 507 (1S52). 
 
 2 Re Smilh, 21 L. J. (P. & M.) 182 (1S62). 
 
 s Lakiu v. Lakin, 34 Deav. 443 (1865) ; tee Dowley v. Winficld, 14 Sim. 277 (1844). 
 
RULE 5 3. J THE PRESUMPTION OF DEATH. 239 
 
 In case II. Shadwell, V. C, said: "Here 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 abroad. Therefore it is but 
 reasonable to presume that all along she had 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 would 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 caserv. 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 might have reasons for 
 not again communicating with her." 
 
 r " 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 sufficient to 
 rebut the presumDtion that G. survived F. 1 
 
 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 that G. survived F. 2 
 
 III. The grant of letters of administration raises a presumption of the 
 death of the party. 3 
 
 1 Keech v. Rinehardt, 10 Pa. St. 20 (1849). 
 
 2 Lancaster v. Washington, Life Ins. Co., 62 Mo. 121 (1876); Jenkins v. Peckin- 
 paugh, 40 Ind. 133 (1872) ; French v. Frazier, 7 J. J. Marsh. 431 (1832) ; Peterkin v. 
 Inloes.4 Md. 175 (1853). 
 
CHAPTBE XI. 
 
 THE PRESUMPTION OF SURVIVORSHIP. 
 
 RULE 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 
 or 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) 
 
EULE 54.] THE PRESUMPTION OF SURVIVORSHIP. 241 
 
 theory of the survivorship of one to prove that fact 
 affirmatively." 1 
 
 Illustrations. 
 
 I. H. and his wife, while in a railroad car together, are precipitated 
 through a bridge into a river. They are afterwards found dead, 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 werelost 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. 3 
 
 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. 6 
 
 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- 
 Held, that the former were. 6 
 
 i Mason v. Mason, 1 Merlvale, 307 (1816) ; Wollaston v. Berkeley, 2 Ch. Div. 213 
 (1876) ; Re Heuss, 2 Salk. 533 ; Re Wheeler, 37 L. J. (P. & M.) 40 ; Robinson v. Sallier, 2 
 Woods C. C. 187 (1875). Contra Calvin v. Procurator-General, lHagg. Eoo. 92 (1827); 
 and seo Durrant v. Friend. 5 D, G. & Sn. 345 (1852) ; Soutton v. Patullo, L. R. 19 Eq. 
 375 (1875) ; R. v. Hay, 1 W. Black. 646. This was the celebrated case oi General Stan- 
 wix, who, with his wife and daughter by a former marriage, perished at sea on a 
 voyage from Dublin to England. Mr. Fearne 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. & Coll. 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 shipwreck; 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." 
 
 s Re Hall, 12 Ch. L. N. 12, 68 (1879). 
 
 a Newell v. Nichols, 12 Hun, 604 (1878). 
 
 « Coye v. Lieach, 8 Mete. 371 (1844). 
 
 B Wright v. Nctherwood, 2 Salk. 592 (1743). 
 
 « Taylor v. Deplock, 1 Phill. 261 (1815) ; Re Selwyn, 3 Hagg. Ecc. 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). 
 16 
 
242 PRESUMPTIVE EVIDENCE. [RULE 54. 
 
 VI. 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. 1 
 
 VII. 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 
 Ithe other. 2 
 
 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. 3 
 
 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. W. 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. 4 
 
 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. 5 
 
 XI. W., her husband and daughter sailed from New York to Europe in 
 March, 1841, in the 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. 6 
 
 XII. A mother and an infant son are lost in a shipwreck. The pre- 
 sumption is that they died at the same time. 7 
 
 1 Satterthwaite v. Powell, 1 Cart. 705 (18381. 
 
 a Underwood v. Wing, i DeG. M. & G. 657 (1855). 
 
 a Re Wainwright, 1 Sw. & Tr. 257 (1858) ; Ee Ewart, Id. 25S (1859). 
 
 * Wing».TJngrave, 6 H. h. Cas. 183 (1860). 
 
 6 See Doe v. Nepean, 5 B. & C. 93 (1833). 
 
 « Moehringu. Mitchell, 1 Barb. Ch. 265 (1846). 
 
 ' Stinde v. Goodrich, 3 Eedf. 87 (1877) ; Ee Eidgway, i Id. 226 (1880). 
 
RULE 54. J THE PRESUMPTION OF SURVIVORSHIP. 243 
 
 XIII. A. and B., husband and wife, are killed in the same casually, e. 
 g., the wrecking of a railroad train by the giving away of a bridge. The 
 presumption is that they died at the same time. 1 
 
 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. 3 
 
 In case III. it was said: " The case stands thus : Sylva- 
 nus Keith and his daughter, Mrs. Coye, perished in the 
 same disaster. No fact is shown giving 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 daughter survived the other. The 
 evidence * * * f a il s 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 presumption 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 
 right to a distributive share in the estate of Sylvanus 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 dying 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. E. Co. v. Miller, 2 Cal. 443 (1874) ; Kussell v. Hallett, 23 Kas. 276 
 (1830). 
 
 = Newell v. Nichols, 75 N. Y. 78 (1878). 
 
244 PRESUMPTIVE EVIDENCE. [EULE 54. 
 
 that there was no wife or child at his death, I pronounce for 
 the will." 
 
 In case V. Sir John Nicholl 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 VI. 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 there 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 PRESUMPTION OP SURVIVORSHIP. 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 1 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 j)rove 
 survivorship, courts will then look at the whole case for 
 the purpose of determining the 'question ; but if only the 
 fact of death by 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. T. 87. 
 
24:6 PRESUMPTIVE EVIDENCE. [RULE 56. 
 
 and it is as unbecoming as it is idle for judicial tribunals 
 to speculate or guess whether during the momentary life 
 struggle 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 al 
 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. 1 
 
 Illustration. 
 
 I. C, Ms daughter H. and son W., each between fifteen and sixteen years 
 old, perish in a shipwreck. The ship struck a rock, and for some hours 
 the passengers worked to lighten her, and to reach places of safety. 
 The father was in very feeble health, and unable to reach the upper deck, 
 which was swept by the waves last, and which the children reached. 
 The presumption is that the father perished first. 2 
 
 KXJIiE 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 H. and son W. perished in a shipwreck. The ship, 
 after striking, was swept by the waves, and C, who was at the time on 
 
 i See Coye v. Leach, 8 Mete. 371 (1844) ; Pell v. Ball, 1 Cheevea (Eq.), S.C., 99 
 (1840.) 
 
 2 See Smith v. Croom 7 Fla. 147 (1857.) 
 
RULE 55. J THE PRESUMPTION OF SURVIVORSHIP. 247 
 
 the lower deck, was -washed off. Subsequently H. and W. were seen on 
 the upper deck. The presumption is that H. and W. survived their 
 father. 1 
 
 II. B. and his wile 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 sink in about half an hour. Mrs. B. was seen and 
 heard calling for her husband 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. 2 
 
 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 lashed to a floating spar by a 
 sailor to whom she called. The presumption is that C. survived her 
 parents. 8 
 
 IV. Father and son were hanged for a crime at the same time. Wit- 
 nesses observed 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.) 
 
 s Pell v. Ball, 1 Cheves (Eq.) S. C. 99 (1840.) 
 
 » Underwood v. Wing, 4 Do G. M- & G. 633 (1854.) 
 
 * Broughtonv. Randal, Cro. Eliz.503. 
 
CHAP TEE XII. 
 
 THE PEESUMPTION OF IDENTITY. 
 
 RULE 57. — Identity of name raises a presumption 
 of identity of person, where there is similarity of res- 
 idence (a) or trade (b) or circumstances (c) or where 
 the name is an unusual one (D) ; 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. 1 
 
 In Gates v. Loftus, 2 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 Cates v. Loftus, 3 A. K. Marsh. 202 (1820) J Hamshaw v. Kline. 57 Pa. St. 397 
 (1868) ; Atchison v. McCullooh, 5 Watts, 13 (1836) ; Bogue v. Bigelow, 29 Vt. 179 
 (1857) ; Phillips v. Evans, 64 Mo. 17 (1876) ; State v. Moore, 61 Id. 279 (1875.) ; Gilt u. 
 Watson, 18 Id. 27* (1853) ; Flournoy, v. Warden, 17 Id. 435 ; Brown v. Metz, 33 111. 339 
 (1864) ; Balbec v. Donaldson, 2 Grant's Cas. 460 (1854) ; Brotherline v. Hammond, 69 
 Pa. St. 128 (1871); Hunt v. Stewart, 7 Ala. 527 (1845); Douglass v. Dakin, 40Cal. 49 
 (1873); Trimble v. Brichta, 10 La. Ann. 778 (1855); Givens v. Tidmore, 8 Ala. 745 
 (1845) ; Campbell v. Wallace 46 Mich. 320 (lbSl). 
 .2 3 A. K. Marsh. 302 (1820). 
 
 (248) 
 
RULE 57. J THE PRESUMPTION 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 he 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 he 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, 1 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 appears to affect the 
 operation of this rule, unless the fact that the grantor was 
 in the State prison should be so considered, and we see 
 nothing in that, standing by 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- 
 narily sufficient 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 
 Lyman 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 conveyance of it to the appellee, was the same 
 
 132 Mich. 55(1875). 
 
250 PRESUMPTIVE EVIDENCE. [RULE 57. 
 
 person ; yet we think the partial similarity of name, thepos- 
 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." x 
 
 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. 2 
 
 Illustrations. 
 
 I. The question is, 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 Pry, of Plymouth 
 Eock, the only person of that name at the place. The presumption is 
 that he is the defendant. 3 
 
 B. 
 
 I. S. sues for medicines and attendance furnished by him as a licensed 
 apothecary. Under the law he cannot 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 
 
 1 Hodgfcinson v. Willis, 3 Camp. 401 (1813). 
 a Jones i). Parker, 20 N. H. 31 (1849). 
 s Harrington v. Fry, 1 Ry. & M. 90 (1824). 
 * Simpson v. Dismore, 9 M. & W. 47 (1841). 
 
EULE 57.] THE PRESUMPTION OF IDENTITY. 251 
 
 II. An action is brought against a pilot named Win. Henderson, for neg- 
 ligently navigating a vessel. A pilot named Henderson is in court and 
 answers his description. The presumption is that he is the defendant. 1 
 
 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 Lyon 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. 2 
 
 " We find him," says Parke, B., in case 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 against 
 William Henderson, a pilot, and a person in court answers 
 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 M-ants a further link to connect it with the defend- 
 ant, and that it ought to be shown that the Charles Lyon m 
 
 1 Smith v. Henderson, 9 M. & W. 818 (1842). 
 a Hennell v. Lyon, 1 B. & Aid. 182 (1817). 
 
252 PRESUMPTIVE EVIDENCE. [RULE 57. 
 
 the answer was the present litigant. I do not know any- 
 way 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 Lyon, 
 as administrator of Mary Lyon. There is therefore prima 
 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. 1 
 
 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. 2 
 
 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, 76 Mo. 506 (1882). 
 * Douglas v. Dakin, 46 Cal. 49 (1873). 
 
KULE 5 7. J THE PRESUMPTION OF IDENTITY. 253 
 
 A witness proves that the signature was that of a gentleman of that 
 name, formerly a clerk in 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 same. 1 
 
 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 had 
 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 
 whether the defendant who answered to the same name is the same per- 
 son. The presumption is that he is. J 
 
 III. An action is brought against Henry Thomas Eyde, 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. He can not identify him 
 with the defendant of the same name. This is a sufficient prima facie 
 case. 3 
 
 IV. The 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. 0. Anderson, and had 
 two years previous transacted certain business at the bank. The pre- 
 snmption is that they are the same. 4 
 
 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. 6 
 
 "Does the name go for nothing at all in any case ? ' ' asked 
 Denman, C. J., in the course of an argument. 8 " 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 Greenshields «. Cfflwford, 9 M. A W. 314 (1841). 
 
 2 SeweU v. Evans, 4 Q. B. 626 (1743). 
 " Roden v. Eyde, 4 Q. B. 626 (1843). 
 
 » Warren v. Anderson, 8 Seott, 384 (1839). 
 s Kelly v. Valney, 5 Penn. L. J. 300 (1854). 
 « Sewell v. Evans, 4 Q. B. 626 (1843). 
 
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 question as to the 
 party being the same, even identity of name is something 
 from which an inference may be drawn. 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 Ehydes 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, 1 * 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 place where the note was signed, 
 and there is no evidence to show that the " Hugh Jones " who is sued 
 is the "Hugh Jones " who signed the note. The plaintiff is non-suited. 2 
 
 ' Whitelock v. Husgrove, 3 Tyrw. 543. 
 2 Jones v. Jones, 9 M. & W. 76 (1811). 
 
EULE 58. J THE PRESUMPTION OP IDENTITY. 255 
 
 It was said by Williams, J., in a subsequent case, 1 that in 
 case I. it appeared that the name Hugh Jones in that par- 
 ticular part of Wales was so common as hardly to be a name, 
 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." 
 
 RULE 58. — The fact that the family name and initials 
 are the 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. 2 
 
 II. Henry V. Libhart brings an action on a judgment in favor of H. 
 V. Libhart. In the absence of any averment that he was known by the 
 latter name or that it was rendered in his favor by that name, there is 
 no presumption of his identity with the plaintiff in such judgment. 3 
 
 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. 1 
 
 In case I. it was said: "The plaintiff must produce a 
 note and show it to be prima 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 sufficient to 
 entitle him to judgment? It may be the note of Andrew 
 A. Louden. * * * But would it prima facie be the 
 note of Andrew 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 Eoden v. Eyde, 4 Q. B. 625 (1843). 
 
 2 Louden v. Walpole, 1 Ind. 321 (1848). 
 
 » Bennett v. Libhart, 27 Mich. 489 (1873). 
 * Burford v. MoCue, 53 Pa. St. 431 (1866). 
 
256 PRESUMPTIVE EVIDENCE. [EULE 59. 
 
 rather than Abraham or Armstrong or Alexander A. Lou- 
 den?" 
 
 In case II., 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 hgen 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." 
 
 RULE 59. — Where two persons of the same name oc- 
 cupy different positions or relations, the presumption 
 is that they are different persons. 1 
 
 Illustrations. 
 
 I. It is objected that the judge presiding at the time an order was 
 made in a certain cause was one 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. 2 
 
 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. 3 
 
 III. 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. 4 
 
 IV. 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. 6 
 
 i See Nicholas v. Lansdale, Lltt. Sel. Cas. 21 (1805). 
 2 Ellsworth b. Moore, 6 Iowa, 486 (1857). 
 » Cozzens v. Gillispie, i Mo. 82 (1835). 
 * Cooper v. Poston, 1 Dnv. 92 (1863). 
 Wickersham v. People, 2 111. 128 (1831). 
 
RULE 61.] THE PRESUMPTION OF IDENTITY. 257 
 
 V. A certificate of sale of property for taxes is made to " Michael 
 Dundon," but the deed ismadeto " 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. 1 
 
 "The court knows, judicially," it was said in case I., 
 «'the judges 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 Eev. 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. ' 
 
 RULE 61. — Where an interest is claimed, mere identity 
 of name to the person entitled is insufficient. 
 
 Illustration*. 
 
 I. It appears that one Timothy Mooers is entitled to an interest in an 
 estate. A person of that name brings an action therefor. Prom the 
 identity of names alone it is held that there is no presumption that the 
 person bringing the suit is the one entitled. 9 
 
 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 
 
 1 MoMinn v. Wlielan, 27 Cal. 800 (1868). 
 
 * Burford v. McOue, 63 Pa. St. 431 (1868). So in pleading where an initial is 
 used instead of the full name, it will be presumed to be an abbreviation, and not a 
 different name. Lee v. Mendel, 40 111. 359 (1866). 
 
 a Mooers v. Bunker, 29 N. H. 431 (1854). 
 
 * Jackson v. King, 5 Coir. 237 (15 Am. Dec. 468). (1825). 
 
 17 
 
258 PRESUMPTIVE EVIDENCE. [RULE 62. 
 
 " The first thing to be 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 
 the 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." 
 
 KUIjE 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. 
 
 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. 1 
 
 II. An indictment alleges that a woman named therein had committed 
 adultery with 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. 8 
 
 III. A devise was made to John Cluer. The presumption is that it 
 was the father and not the son of that name, who was intended to 
 take. 3 
 
 i Sweeting v. Fowler, 1 Stark. 106 (1815.) Fyffe v. Fyffe, 106 111. 616 (1883). In 
 Stebbing v. Spicer, 8 C. B. 827 (1849), this case was followed, but it was held that the 
 presumption was rebutted by the son's indorsement of the note. And see Kincaid 
 v. Howe, 10 Mass. 203 (1813). 
 
 a State v. Vittum, 9 N. H. 519. 
 
 8 Jones v. Newman, 1 W. Black. 60. 
 
RULE 62 .] THE PRESUMPTION OF IDENTITY. 259 
 
 IV. A deed of land was executed to Joshua Granger. There are two 
 persons of that name living at the time — father and son. The presump- 
 tion is that the father was the grantee. 1 
 
 "V. There are two persons of the name of A. B. father and son. An 
 assignment of a land certificate is made to A. B. The presumption is 
 that the father was intended. 2 
 
 In an English case 8 judgment had been obtained against 
 Joseph Jarmain, the son of a person of the same name, 
 and fieri facias was issued against him without further de- 
 scription, under which the goods of his father were sold. It 
 was held 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 be 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, 
 therefore the want of addition imports prima facie that the 
 son is not intended, it is no more than & prima facie intend- 
 ment, for the son may be the person 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 other hand (case II.), it was held 
 that a crime being charged, the presumption was not rebut- 
 
 1 Stevens o. West, 6 Jones (L.) 50 (1858) ; Graves v. Colwell, 90 111. 615 (1878.) 
 
 s Brown v. Benight, 3 Blaokf. 39; 23 Am. Dec. 872 (1832). Lepiot v. Browne 
 1 Salk. 7. . 
 
 2 Jarmain r Cooper. 6 Jl. & 828 (1843). 
 
260 PKESU3IPTIVE EVIDENCE. [ECLB 62 
 
 table. The woman was accused of adultery with Levi 
 Wallace, and there were two Levi Wallaces -r- 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. 1 But where 
 there are two persons of the same name, father and son, 
 residing 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. 3 
 
 1 Coit v. Starkweather, 8 Conn. 203. 
 
 s R. v. Pease, 3 B. & Aid. 579 (1820), and see E. v. Bailey, 7 C. & P. 261 (1835). 
 
RULE 63.] THE PRESUMPTION OP IDENTITY. 261 
 
 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 things may be presumed 
 from circumstances. 1 
 
 Illustrations. 
 
 I. A certain case is proved to have been on a certain day removed 
 from a justice's court to the Supreme 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. 2 
 
 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. 3 
 
 III. An action is brought 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 acknowledges and undertakes to pay "his 
 debt." The presumption is that this refers to the debt sued on.* 
 
 1 Morris v. Landauer, 48 Iowa, 234 (1878); Byrd s. Fleming, 4 Bibb. 115 (1815); 
 Beatty v. Michon, 9 La. Ann. 102 (1854). 
 a Howard v. Rockwell, 1 Doug. (Mich.) 315 (1844). 
 8 Mead v. Parker, 115 Mass. 413 (1874). 
 * Coles v. Kelsey, 2 Tex. 541; 47 Am. Dec. 661; (1847). 
 
CHAPTER XIII. 
 
 THE PRESUMPTION OF INTENT. 
 
 KTjXE 64. — "Where a person does an act, he is pre- 
 sumed in so doing to haTe intended that the nat- 
 ural (A) and legal (B) consequences of his act shall 
 result. 1 
 
 Illustrations. 
 
 I. W. wrote and published of H. that he had colluded with an insol- 
 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 H. 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. 3 
 
 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. 4 
 
 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, 12 Ired. (L.) 105 (1851); 
 Hayes v. State, 58 Ga. 47 (1877) ; Hoskins v. State, 11 Id. 92 (1852) ; Lawrence v. State, 
 68 Ga. 289 (1881). " Every man acting intelligently will be presumed to intend the 
 necessary consequences of his acts." Holmes v. Holmes, etc., Manufg. Co., 37 
 Conn. 278 (1870). But a party is not presumed to intend remote consequences of 
 his acts. Nicol v. Crittenden, 55 Ga. 497 (1875). 
 
 = Haire v. 'Wilson, 9B. & C. 643 (1S29) ; King v. Harvey, 3 D. & R. 464 (1823). 
 
 " King v. Dixon, 3 M. & S. 12 (1814). 
 
 * Tt. v. Fanning, K. & E. 207 (1811). 
 
 « Ecker v. McAllister, 45 Md. 290 (1876) ; Gardner v. Lewis, 7 Gall. 377 (1848). 
 
 Evans v. Evans, 41 Cal. 103 (1871) ; Astley v. Astley, 1 Hagg. Ecc. 720 (1828). 
 
 (262) 
 
RULE 64. J THE PRESUMPTION OF INTENT. 263 
 
 VI. A wife who resided in Massachusetts goes to Maine and immedi- 
 ately applies for and obtains a divorce for causes not a ground for 
 divorce in Massachusetts. The presumption arises that her purpose in 
 removing to Maine was to obtain a divorce. 1 
 
 VII. A statute provides that certain conveyances made with intent to 
 give a preference to certain creditors shall be void. A. makes a convey- 
 ance whose provisions prefer certain creditors. The presumption is that 
 A. intended to give a preference. 2 
 
 ' ' The judge," said Tenterden, C. J. , in case I. , " ought not 
 to have left it as a question to the jury whether the defendant 
 intended to injure the plaintiff, for every man must be 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 VII., 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 Chase v. Chase, 6 Gray, 157 (1856). 
 
 s Denny v. Dana, 2 Cush. 160 (1848) ; Beals v. Clark, 13 Gray, IS (1S59). 
 
2(54 PRESUMPTIVE EVIDENCE. [RULE 64. 
 
 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. 1 
 
 II. A., who holds two claims against B., gives him a release iinder 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. 3 
 
 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. 5 
 
 VI. 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 is 
 that A. did this with the intention of defrauding B., and B.'s opinion that 
 he did not intend to defraud is irrelevant. 6 
 
 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 officers 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. 7 
 
 VIII. A. sets fire to a building. The presumption is that he intended 
 to destroy it. 8 
 
 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. 9 
 
 X. A statute provides that the failure to pay over money by a public 
 offioer shall be punishable j a public officer is indicted for failing to turn 
 
 1 Mears v. Graham, 8 Blacki. 144 (1846) ; Burrit v. Dickson, 8 Cal. 113 (1157). 
 
 * Jones v. Ricketts,-7 Md. 108 (1864). 
 
 s Ex parte Villars, L. JR. 9 Ch. App. 143 (1874). 
 
 * R. v. Hill, 2 Moody, 30 (1838). 
 
 6 R. v. Nash, 2 Den. C. C. 498 (1852). 
 
 « R. v. Sheppard, R. & R. 160 (1809). 
 
 f R. v. Mazagora, R. & R. 291 (1816). 
 
 s People v. Oroutt, 1 Park. C. C. 252 (1851). 
 
 i Williams v. Boozeman, 18 La. Ann. 532 (1S66). 
 
RULE 64. J THE PRESUMPTION OP INTENT. 265 
 
 over a license fee collected by Mm. The presumption is that his failure 
 was willful and intentional. 1 
 
 Ill case II. it was said: "When the law ascribes to one 
 instrument a conclusive and to another & 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 as 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 
 
 i State v. Heaton, 77 ST. C. 504 (1877). 
 
266 PBESUMPTIVE EVIDENCE. [eTJLE 65. 
 
 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 
 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 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. 
 
 RULE 65. — Where an act is criminal per se a criminal 
 intent is presumed from the commission of the act. 1 
 
 Illustrations. 
 
 I. N. is proved to have been stabbed with 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 (1856) ; Murphy v. Com. 23 Grat. 960 (1873) ; McCone 
 v. High, 24 Iowa, 336 (1868) ; Murphy v. State, 37 Ala. H2 (1861) ; Carroll v. State, 23 
 Ala. 28 (1S53). 
 
 2 Com. v. York, 9 Meto. 93 (1845) ; Murphy v. People, 37 111. 447 (1866) ; Kiggs v. 
 State, 30 Miss. 636 (1856) ; State v. Bertrand, 3 Oregon, 61 (1868) ; State v. Holme, 54 
 Mo. 153 (1873) ; Conner v. State, i Yerg. 137 (1833). 
 
BULB G5.J THE PRESUMPTION OP INTENT. 267 
 
 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 presumption is that S. intended to kill C. 1 
 
 In Commonwealth v. Webster, 2 Chief Justice Shaw said: 
 " The ordinary feelings, passions, and propensities under 
 which parties act are facts, known by observation and 
 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 
 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, 1 Strobh. 77 (1817). 
 
 2 5 Cusli. 316 (1850). 
 
268 PRESU31FTIVE 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 : 
 " 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 
 to intend the death which is the probable and ordinary 
 consequence of such an act." 1 
 
 In case II. it was said: "If one were to fire a loaded 
 gun 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. 
 
 i Agnew, C. J., in Com. v. Drum, 68 Pa. St. 17 (1868). 
 
RULE 65.] THE PRESUMPTION OF INTENT. 269 
 
 "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 we judge, renders the intent more 
 doubtful and the-inference less strong. So, if one beat a 
 full-grown man with his fist, and death ensues, we would 
 ordinarily 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 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 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 
 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 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 EVIDENCE. [RULE 64. 
 
 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. 1 
 
 "It has been urged," said Comstock, J., in Curtis v. 
 Leavitt, 2 "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 Quinebaug 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 Jones v. Rowland, 8 Mete. 306 (1814). 
 2 15 N. Y. 1 (1857). 
 a 30 Conn. 559 (1862). 
 
RULE 66. J THE PRESUMPTION OF INTENT. 271 
 
 intention, and from which 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 regard to such 
 intention." 
 
 RUIiB 68. — 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. 
 
 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 
 R. intended to murder E. 1 
 
 II. A statute makes a willful, deliberate and premeditated killing 
 murder in the first degree. B. kills C. There is no presumption that 
 the killing was deliberate and premeditated. 2 
 
 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 
 when 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, we are aware of no well founded exceptions to the 
 rule above stated, and in all such cases the particular intent 
 
 i Roberts v. People, 19 Mich. 401 (1S70) ; Mayher v. People, 10 Id. 212 (1862). 
 
 2 Com. v. Drum, 68 Pa. St. 9 (1876) ; State v. Mitchell, 64 Mo. 191 (1876) ; State v. 
 Foster, 61 Id. 649 (1876) ; State v. Lane, 61 Id. 319 (1876) ; Hamby t>. State, 36 Texas, 
 623 (1872). 
 
272 PRESUMPTIVE EVIDENCE. [RULE 67. 
 
 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." 
 
 RUIiE 67. — The law presumes an intent from acts in 
 the absence of declarations (A) where the party is 
 physically 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. 1 
 
 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, tho 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, beeause 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 
 
 i Knapp v. White, 23 Conn. 629 (1865) . » Id. 
 
RULE 67.] THE PRESUMPTION OF INTENT. 273 
 
 warranty in a deed, where he knows 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 gives it. But 
 ordinarily we suppose that parties do not in this open 
 way intentionally involve themselves in lawsuits. And we 
 do not see why the plain, open, 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 be 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 
 parties 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 are 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 PRESUMPTIVE EVIDENCE. [RULE 67. 
 
 controversy. But this does not mean that there must 
 always 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. 19 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. 1 
 
 II. E. is indicted for shooting at S. with intent to kill him. B. shot at 
 S. while in a state of intoxication. The guilt of E. turns on the question 
 whether E. was in such a state of mind as to be able to form an intent. 2 
 
 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 general 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 (1879) ; Wood v. State, 34 Ark. 341 (1879) ; Roberts ». 
 People, 19 Mich. 401 (1870) ; State v. Bell, 29 Iowa, 316 (1870) ; State v. Maxwell, 42 Id. 
 208 (1875) ; Wenz v. State, 1 Tei. App. 36 (1876) ; Loza v. State, Id. 438 (1877) ; U. S. 
 v. Bowen, 4 Cranch O. 0. 604 (1835) ; State v. Coleman, 27 La. Ann. 691 (1876) ; State 
 v. Trivaa, 32 Id. 1086; 36 Am. Eep. 293 (1880). 
 
 ' E. r. Monbhouse, 4 Cox, 55. 
 
RULE 67.] THE PRESUMPTION OF INTENT. 275 
 
 times so apparent as to leave no doubt 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; 
 but 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 boru idiot, the intent to kill could not be 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 forming 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, 1 I am not so 
 clear as to the propriety of adopting the very words. If 
 he 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 committing 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." 
 
 1 E. v. Craiso, 8 C. & P. 546. 
 
276 - PRESUMPTIVE EVIDENCE. [RULE 68. 
 
 RULE 68. — 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 the death of D. they made a division of the estate. The question 
 was whether they had divided the life estate or the estate in fee. Meld, 
 that the presumption was the former. 1 
 
 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 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. 2 
 
 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. 9 
 
 IV. A person makes a deed of land. The presumption is that he was 
 seized of the land at the time. 4 
 
 V. K. 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 
 E. F.'s order being lost, the question is which was given first. The pre- 
 sumption is that the order in favor of L. was. 5 
 
 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. 6 
 
 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. 7 
 
 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. 8 
 
 1 Pool v. Morris, 29 Ga. 395 (1869). 
 
 a Gibson v. Doeg, 2 H. & N. 615 (1857). 
 
 a Horan v. Weiler, 41 Pa. St. 470 (1862). 
 
 i Bolster v. Cushman, 34 Me. 428 (1852). 
 
 » James River.etc.Co.c.Litttejohn.lSGratt. 53 (1867) ; Littlejohn v. Ferguson, Id, 
 
 « Trott v. Irish, 1 Allen, 481 (1861) ; Hewes v. Platts, 12 Gray, 143 (1858) ; Stebbms 
 a. Leowolf, 1 Oush. 137 (1849) ; Kidder v. Norris, 18 N. H. 532 (1847). 
 
 > Sutphen v. Onshman, 35 111. 187 (1864). 
 
 s Sidney v. Sidney, 3 P. Wins, 270 (1734) ; Clark v. Perriain, 3 P. Wins. 334 (1741) ; 
 Solioles v. Hilton, 10 M. & W. 15 (1842). 
 
RULE 68.] THE PEESUMPTION 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. 1 
 
 X. 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. 2 
 
 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 person employed 
 in the navigation; the burden of proving that B. did not give the notice 
 was on A. 3 
 
 XII. 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. 4 
 
 " It is a natural presumption," it was said incase 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 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 
 trespasses to constitute a right so that it may be said, a right 
 
 l Timson e. Moulton, 3 Cash. 269 (1849). 
 
 a Johnson v. Farwell, 7 Me. 370 (1831). 
 
 » Williams v. East India Co., 3 East, 104 (1802). 
 
 4 Carson v. Central E. Co., 35 Cal. 325 (1868). 
 
278 PRESUMPTIVE EVIDENCE. [RULE 68. 
 
 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." 
 
 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 E. 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 wrongfully put on board without notice of its 
 nature and quality." 
 
CHAPTEE XIV. 
 
 THE PRESUMPTIONS FROM THE COURSE OF NATURE. 
 
 KULE 69. — The law presumes that in a particular case 
 the regular course of nature applied or was followed. 
 
 Illustrations. 
 
 I. A. ia 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 committing the crime. 1 
 
 II. A crime is committed by a woman in the presence of her husband. 
 The presumption is that it was done under his coercion. 2 
 
 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. 3 
 
 IV. A statement is proved to have been made in the presence of H. 
 It will be presumed that H. heard it. 4 
 
 V. A wife 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. 5 
 
 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. 6 
 
 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 K. v. Owen, 4 0. & P. 236 ; Queen v. Smith, 1 Cox C. C. 260 ; Com. v. Mead, 10 
 Allen, 398 ; People v. Davis, 1 Wheeler, 230 ; Walker's Case, 5 City Hall Eec. 137 ; 
 Dove v. State, 37 Ark. 262 (1881). 
 
 2 Com. v. N<5al, 10 Mass. 152 (1813) ; E. i>. Knight, 3 C. & P. 116; K. v. Conolly, 2 
 Lewin, 229; E. v. Price, 8 C. & P. 19; R. v. Archer, 1 Moody, 143; E. v. Matthews, 1 
 Den. C. C. 549; Freel ©.State, 21 Ark. 212 (I860). But statements made by a married 
 woman where the boundary between her land and her husband's is, are not pre- 
 sumed after her decease to have been made under coercion by him. Pike v. Hayes, 
 14N.H. 19(1843). 
 
 » Marshall v. Oakes, 51 Me. 309 (1864). 
 
 * Hochrieter t>. People, 2 Abb. App. Dec. 363 (1864) ; aliter, of course, were he 
 unconscious from sleep or stupor. Lanergan v. People, 39 N. Y. 41 (1868). 
 
 t Clinton v. Kidwell, 82 111. 427 (1S76). 
 
 • McLain v. Winchester, 17 Mo. 49 (1852). i 
 i Hicks v. Keats, 4 B. & 0. 71 (1825). 
 
 (279) 
 
280 PRESUMPTIVE EVIDENCE. [RULE 69. 
 
 VIII. A husband buys a piece of land and conveys 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. 1 
 
 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. 3 
 
 In case I. Littledale, 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 offense 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 he is presumed to 
 be responsible 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 (1880). 
 
 2 Lane v. Ironmonger, 13 M. & W. 368; Pickering v. Pickering, 6 N. H. 124; Stall 
 v. Meek, 70 Pa. St. 181; Felker v. Emerson, 16 Vt. 653; Phillipson v. Hayter, L. E. 6 
 C. P. 38; Morgan v. Chetwynd, 4 F. & F. 451; Freestone v. Butcher, 9 C. & P. 647. 
 
 s U. S. v. Lawrence, 4 Cranch C. C. 514 (1835) ; U. S. v. McGlue, 1 Curt. 1 (1851) ; 
 Burton v. Scott, 3 Eand. 389 (1825) ; Thornton v. Appleton, 29 Me. 300 (1849) ; Cordrey 
 v. Cordrey, 1 Houst. (Del.) 269 (1855) ; Stubbs v. Houston, 33 Ala. 655 (1859) ; Lilly v. 
 Waggoner, 27 111. 395 (1862) ; State t>. Pike, 49 N. H. 399 (1870). In will contests in 
 Massachusetts there is said to be no presumption of the sanity of a testator, but the 
 person offering the will for probate must prove it. Crowninsbield v. Cronwinehield, 
 2 Gray, 524 (1854) ; Breed v. Pratt, 18 Pick. 115 (1836) ; Phelps r.Hartwell, 1 Mass. 71 
 (1S04) ; Blaney v. Sergeant, 1 Mass. 335 (1S05). Where the attesting witnesses to 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, 
 19 N. H. 139 (1848). 
 
RULE 69. J PRESUMPTIONS FHOM COURSE OF NATURE. 231 
 
 In It. v. Smith, 1 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 years, the law presumes 
 him to be incapable of committing a crime ; after the age 
 of fourteen, he 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 ho did fire it) he had 
 a guilty knowledge that he was committing a crime." The 
 prisoner was acquitted. 
 
 In Walker's Case 2 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. Townsend 3 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, 260 (1845). 2 5 City Hall Eec. 137. » 3 Hill, 481 (1842). 
 
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 with 
 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 capax, and could not rightfully be convicted of 
 any offense." 
 
 In Commonwealth v. Mead, 1 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 whom 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 were 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, 398 (1865). 
 
RULE 69.] PRESUMPTIONS FROM COURSE OF NATURE. 283 
 
 of seven and fourteen is not presumed to be doli capax, and 
 the question whether, in committing an offense, such child 
 in fact acted with intelligence and capacity, and an under- 
 standing of the unlawful character of the act charged, is to 
 be determined by the jury upon the evidence, and in view 
 of all the circumstances attending the alleged criminal trans- 
 action. 1 This rule is uniformly applied when children 
 under fourteen and above seven years of age are charged 
 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 pro/iibita. 
 These do not so violently shock the natural moral sense or 
 instinct of children, and would not be so readily recognized 
 and understood by 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 was not necessary to show actual knowledge by 
 the defendant of the unlawfulness of the act, if sufficient 
 legal capacity to commit crime was otherwise proved. If 
 capacity is established, knowledge may be presumed. Nor 
 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. 0. 23-27; 1 Aruhb. Crim. Pr. 10; 1 Rnss. on Crimes (7th Am. ed.),4; 
 Eex v. Owen, i C & P. 236. 
 
284 PRESUMPTIVE 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 
 which she committed. She seems to have made the illegal 
 sale in the presence of and in obedience 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 x 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- 
 ducing to show that the accused had made conflicting: 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 prima 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 were 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 by showing 
 a guilty knowledge on the part of the accused. Eussell 
 
 1 13 Bush, 230 (1877). 
 
RULE 69.] PRESUMPTIONS FROM COURSE OP NATURE. 285 
 
 says that this 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 suggests 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 capable 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 
 with 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 jury on 
 this branch of the case, the judgment is reversed and cause 
 remanded, with directions to award a new trial, and for 
 further proceedings consistent with this opinion." 
 
 In State v. Sam, 1 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 Winst. 300, (1864). 
 
286 PRESUMPTIVE EVIDENCE. [RULE 69. 
 
 can be convicted of an assault with intent to commit a. 
 rape. By the provisions of the Eev. 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 consid'ered 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 cannot 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; Rex v. JEUdershaw, 1 and Itegina v. Phil- 
 lips. 2 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 proper consideration of principles, 
 
 i 14 Eng. Com. Law, 336. a 34 Eng. Com. Law, 763. 
 
RULE 69. J PRESUMPTIONS FROM COURSE OF NATURE. 287 
 
 it will be seen why the fact found by the jury that there 
 was an emission of seed from the person of the prisoner, 
 does not materially affect the case. The presumption which 
 arises from want of age, applies equally to the offense of 
 rape and the offense of assault with intent to commit it. 
 Both presumptions are irrebuttable. The case of State v. 
 Pugh, 1 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 R. v. Smith, 2 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- 
 
 1 7 Jones, 61. ' Dears. & B. B53 (1853). 
 
288 PRESUMPTIVE EVIDENCE. [RULE 69. 
 
 posed of this case by their finding. They have found that 
 Sarah Smith was a married woman ; that she acted under 
 the 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 1 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, 2 the prisoner, Sarah Connally, was 
 indicted for uttering base coin. The evidence was that she 
 had gone 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 3 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 
 judges 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. Slapleton,* S. and his wife were indicted for a 
 robbery, in which the latter appeared to have taken an active 
 
 1 2 Lewin, 230 (1839). 8 1 Moody, 145 (1826). 
 
 s 2 Lcwin, 229 (1829). < 1 Cr. & D. 163 (1828). 
 
RULE 69.] PRESUMPTIONS FROM COURSE OF NATURE. 289 
 
 part. Bushe, C. J., left the question of coercion to the 
 jury, who found both prisoners guilty. The point was re- 
 served for the consideration of the judges, who held that 
 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. Buncombe , x 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 pi'isoner in the pres- 
 ence of her husband, who 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 Rus- 
 sell on Crimes, 2 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 sole." 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 H. v. Wright, 3 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. 183(1845). 5 Vol. 1, p. 18. » 1 C. & P. 116 (1823). 
 
 19 
 
290 PRESUMPTIVE EVIDENCE. [RULE 69. 
 
 both the prisoners were in company at the time of the theft. 
 Park, .7., 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 Eyan, better known 
 by 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." 1 
 
 In a note to Ji. v. Knight, 2 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 a23peared 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, 9 tried at the Stafford Lent Assizes, A. D. 
 
 1 Note to R. v. Knight, 1 C & P. 116 (18S2). 
 
 s 10. & P. 116 (1S23). 
 
 3 Burns, Justice, tit. Wife. 
 
EULE 6 9. J PRESUMPTIONS FROM COURSE OF NATURE. 291 
 
 1790, Charles Squire and Hannah his wife were indicted for 
 the murder of a boy who was bound as a parish apprentice 
 to the prisoner Charles ; and it appeared in evidence that 
 both 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 
 neglecting to do so; though if the husband 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 conscientias 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 Commomoealtk v. Burk, 1 a married woman was in- 
 dictedfor selling intoxicating liquors, and it appeared thatthe 
 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 rooin- 
 the wife was not liable for such sale." But the judge in, 
 structed them that " if the husband was actually present 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 (1858) ; Com. v. Welch, 97 Mass. 594 (1867). 
 
292 PRESUMPTIVE EVIDENCE. [RULE 69. 
 
 victed she appealed to the Supreme Court where the ruling 
 washeld erroneous. " The instruction prayed bythedefend- 
 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. 1 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 was 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. 2 The law 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. Townsend* 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. Lewis, 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. 
 
ROLE 69.] PRESUMPTIONS FROM COURSE OF NATURE. 293 
 
 in company with her husband, the law presumes that she 
 acts under coercion, and she is to be acquitted." 1 
 
 In State v. Williams, 2 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 guilty, 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, Eodman, 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 3 
 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. says: '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.' 4 
 Also, in Archibold's Crim. Prac. and Pleading: ' 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 
 sole, for any offense, not capital, against the common law 
 or statute. And if it be of a nature that may be 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- 
 
 1 Com. v. Lewis, 1 Meto. 153 (1840). « Book 1, p. 444. 
 
 2 65 N. C. 365 (1871). * 1 Rusb. Cr. 16. 
 
294 PRESUMPTIVE EVIDENCE. [RULE 69. 
 
 theless 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 will be found 
 referred to in the notes to Commonwealth v. Need, 1 in the 
 argument of the counsel for the prisoner in Hegina v. 
 Cruse. 2 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 would seem more likely to be committed by women, 
 such as keeping a bawdy house, etc. The case above re- 
 ferred to, of Commonwealth v. JYeal, 3 was an indictment 
 against husband and wife for an assault and battery, and is 
 therefore in point. Bishop 4 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. 6 Hex v. Price 6 was for a misdemeanor in 
 uttering counterfeit coin ; and as was Connolly's Case. 1 
 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 Hex v. Hughes, 8 says, that the reason 
 
 1 10 Mass. 152; 1 Lead. Crim. Cases, 81. 
 
 s 2 Moody O. O. 53, and in 1 Bishop C. Law, 452. 
 
 » 10 Mass. 152. 
 
 * 1 vol., sec. 452. 
 
 6 Rex v. Archer, 1 Moody C. 0. 143 ; Regina v. Barber, i Cox C. C. 272. 
 
 • 8 C & P. 19. 
 
 ' 1 Lewin 0. 0.227. 
 » 2 LewinC C. 225. 
 
RULE 69. J PRESUMPTIONS 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 clergy (which a woman could in no case 
 do), and thus escape with a slight one. The reason would 
 confine the principle to the clergyable 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 tb e 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 be 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," 1 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 was 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. 452. 
 a 103 Mass. 71 (1867). 
 
296 PRESUMPTIVE EVIDENCE. [RULE 69. 
 
 judgment, " 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. 1 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. Stale, 2 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. 
 
 l Commonwealth v. Gannon. 97 Mass. 547; Commonwealth v. Burk, 11 Gray, 437. 
 a21Ark.212(lS60). 
 
RULE 69.] PRESUMPTIONS FROM COURSE OF NATURE. 297 
 
 Freel, and the said James M. Freel is and was her husband 
 at the time of its commission they must find the defendant 
 Sally Freel, not guilty under the indictment.' Which the 
 court refused ; and the 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 charged in the indict- 
 ment was done or committed by the defendant Sally Freel, 
 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 legal 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, will not excuse her. 1 Mr. 
 Bishop thinks the better opinion is that the coercion 
 of the husband will exempt her from criminal liability for 
 any offense whatever. 2 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. Crim. Tlea. & Ev. 6 ; Eoscoe Or. Ev. 956 ; Hale P. C. U. 
 
 2 Bishop Cr. L., sec. 277; bu.t see Wharton, 63. 
 
298 , PRESUMPTIVE EVIDENCE. [RULE 69. 
 
 murder, and robbery, though as to other felonies and mis- 
 demeanors, perhaps, the rule is otherwise. 1 Our statute 
 declares 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, 2 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. Bishop), 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 Hale 46, Stokes & Ing. Ed. 
 
 2 Dig. Ch. 61, see. 1 of Part I. 
 
EDLE 69. J PRESUMPTIONS FROM COURSE OF NATURE. 299 
 
 wife. 1 But the question here is as to their joint liability. 
 When the tort or crime is committed by the wife alone, and 
 without the presence, or direction of her husband, she may 
 be held liable, civilly and criminally. In such cases, the civil 
 action must be against both the husband and the wife. 2 But 
 if committed in his presence and by his direction, he alone is 
 liable. 3 The prima facie, 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. 4 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 presumption 
 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. 5 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. 6 The presumption is 
 one of the compensations, or offsets, 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 State v. Bur- 
 lingame, 1 ' 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. Hamar, 5 Binn. 43. 
 
 * 2 Kent's Com. 149; Head v. Briscoe, 5 0. & P. 484 (24 E. C. L. 419) ; Keyworth 
 v. Hill, 3 B. & Aid. 685 (5 E. 0. L. 422). 
 
 a 2 Kent's Com. 119. 
 
 * Hilliard on Torts, ch. 42. 
 
 6 Wharton's Am. Cr. Law, book 1, sec. 73; 1 Hale, 516. 
 
 * lb., sect. 74. 
 
 ' 15 Maine, 106. 
 
300 PKESUMPTIVE EVIDENCE. [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. III.), 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. 1 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 sufficient to show clearly that she was at the time, ' the 
 
 i Billiard on Torts, ch. 42, sec. 1; Com. v. Lewis, 1 Meto. 163. 
 
EULE 6 9. J PRESUMPTIONS FROM COURSE OF NATURE. 301 
 
 head of the family,' especially -when it is said in the same 
 statement that she was at the lime 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." 
 
 In case 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 piece of land for the wife 
 
302 PRESUMPTIVE 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 will be pre- 
 sumed to be a gift." 
 
 ' ' 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 
 younc, 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 unemancipated, and that children above 
 that age are empancipated, until the contrary appears. 2 So 
 the domicil of an infant is presumed to be that of the 
 mother. 8 
 
 In a number of cases the English courts have acted on 
 the presumption that a woman beyond a certain age, is inca- 
 
 l Patterson v. McCansland, 3 Bland. Ch. 70 (1830). 
 
 * Fitzwilliam v. Troy, 6 N. H. 166 (1S33) ; Oxford v. Kumney, 3 N. H. 331. 
 
 8 Sprague v. Litherberry, 1 McLean, 112 (1318). 
 
EULE 70.] PRESUMPTIONS FKOM COURSE OF NATURE. 303 
 
 pable of child bearing. 1 No case can be found in the 
 American courts in which such a presumption has been 
 given effect to. In List v. Rodney," 1 it was laid down that 
 in the devolution of estates, the law 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 s and men. 4 In the South, in slavery 
 times, a person of color was presumed to be a slave. 6 
 
 RULTE 70. — A person is presumed to do what it is his 
 interest to do, and not to act against his interest. 6 
 
 Illustrations. 
 
 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 work this, a 
 disclaimer must be proved. 7 
 
 II. A conveyance of property is made to B. The presumption is that 
 B. accepts it. 8 
 
 l Levy v. Hodges, Jac. 585; Lyddon v. Ellison, 19 Beav. 565; Miles v. Knight, 12 
 Jnr. 666; Dodd v. Wake, 5 DeG. & Sm. 226; Brandon v. Woodthorpe, 10 Beav. 463; 
 Brown v. Pringle, 4 Hare, 124 ; Edwards v. Tuck, 23 Beav. 271 ; Haynes v. Haynes, 35 
 L. J. Ch. 303 ; Davis v. Bush, 8 Jur. 1114 ; Davidson v. Kimpton, L. E. 18 Ch. Div. 213 ; 
 Groves v. Groves, 12 W. K. 45 ; Widdow's Trusts, L. E. 11 Eq. 408 ; Millner's Estate, 
 E. 14 Eq. 245 ; Payne v. Long, 19 Ves. 571. 
 
 a 83 Pa. St. 483 (1877). 
 
 » Frascr v. Eraser, Jac. 586 ; Conduit o. SoaDe, 24 L. T. (N. s.) 656 ; Jee v. Audley, 
 1 Cox, 325 ; Overhill's Trusts, 17 Jur. 342; Eeynolds v. Reynolds, 1 Dick. 374; Croxton 
 v. May, L. E. 9 Ch. Div. 388. 
 
 4 Lushington v. Boldero, 15 Beav. 1 ; Trevor *. Trevor, 2 Myl. & K. 675 ; Alsop v. 
 Bewtrell, Cro. Jac. 511; Lomax v. Holmdon, 2 Str. 940, ride Mr. Stewart's note to 
 Apgar's Case, 37 N. J. Eq. 501 (1883). 
 
 « Field v. Walker, 17 Ala. 80 (1849) ; Becton i>. Ferguson, 22 Ala. 599 (1853). 
 
 8 Creps 17. Baird, 3 Ohio St. 277 (1854) ; Clawson v. Eichbaum, 2 Grant'3 Cas. 130 
 (1853). A person's assent to a matter which is obviously for his benefit may be pre- 
 sumed, but not where it would be prejudicial to him. Higham v. Stewart, 38 Mich. 
 613 (1S78). 
 
 i Towson v. Ticknell, 3 B. & Aid. 31 (1819) ; Thompson v. Leach, 2 Salk. 618. 
 
 8 Bensley v. Atwill, 12 Cal. 231 (1859) ; Lady Superior v. McNamara, 3 Barb. Ch. 
 375; 49 Am. Dec. 184 (1848) ; Peavcy v. Tilton, 18 N. H. 151; 45 Am. Dec. 365 (1846) ; 
 Merrills v. Swift, 18 Conn. 207; 46 Am. Dec. 315 (1847) ; Thome v. San Francisco, 4 
 Cal. 169; Hallock v. Bash, 2 Eoot (Conn.) 26; Maynard v. Maynard, 10 Mass. 456; 
 Wheelwright v. Wheelright, 2 Mass. 447 ; Eead v. Eobinson, 6 W. & S. 329 ; Chess v. 
 Chess, 1 Pa. St. 32; Beers v. Broome, 4 Conn. 247; Tibballs v. Jacobs, 31 Conn. 428; 
 Hedge v. Drew, 12 Pick. 141 ; Eugles v. Lawson, 13 Johns. 285 ; Jackson v. Phipps, 12 
 
304 PRESUMPTIVE EVIDENCE. [KULE 70. 
 
 III. A charter has been granted to certain parties. The law pre- 
 sumes it to have been accepted. 1 
 
 IV. A husband dies leaving a will in which he devises one-hali 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 are more beneficial to her than her legal dower 
 the presumption is that she accepted them. 2 
 
 V. It is shown that certain arrangements were made for a person's 
 benefit. The presumption is that the person assented to them. 3 
 
 VI. A deed of assignment beneficial to creditors is executed by an 
 insolvent. The presumption is that they assent to it. 4 
 
 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 makes a deed to B. of some land as his child, 
 and in the new name. The presumption is that A. procured or assented 
 to the act of the Legislature. 5 
 
 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. 6 
 
 IX. A. delivers a sum of money to B., a creditor of his. The pre- 
 sumption is that B. pays a debt, not that he makes a loan or gift.' 
 
 X. A debtor leaves a legacy to a creditor. This is presumed to be a 
 payment of the debt, and not a gift. 8 
 
 XI. Property is given by parent to a child. This is presumed to be an 
 advancement, and not a gift. 9 
 
 XII. A. hands a sum of money to B. The law will not presume that 
 this is a loan. 10 
 
 Johns. 421; Church v. Gllman, 15 Wend. 656; Jackson v. Boale, 20 Johns. 187; Renio 
 v. Harrison, 10 Mo. 411 ; Mitchell v. Ryan, 3 Ohio St. 377; Bams v. Hatch, 3 N. H. 304; 
 Guard v. Bradley, 7 In d. 600 ; Brown v. Austin, 35 Barb. 341 ; Mallory i>. Stoller, 6 Ala. 
 801; Herbert v. Herbert, Breese, 2S2. But see, Hulick v. Scovil, 9 111. 159; Bennett 
 ■o. Walker, 23 111. 97; Welch v. Sackett, 12 Wis. 243 (1860). 
 
 1 Newton v. Cabery, 5 Cranch C. C. 632 (1S40). 
 
 2 Merrill v. Emery, 10 Pick. 507 (1830). 
 s 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). 
 
 ' Welch v. Seaborn, 1 Stark. 474 (1816) ; Cary v. Gerrish,4 Esp. 9 (1801) ; Aubertt). 
 Walsh, 4 Taunt. 493 (1812). 
 
 s Breton v. Cope, 1 Peake, 43 (1791) • Cloud v. Clinkinbeard, 8 B. Mon. 397; 48 Am. 
 Dec. 397 (1848). And see Zeigler 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. 4j62 (1876) ; Dill- 
 man v. Cox, 23 Ind. 440 (1864) ; Stevenson v. Martin, 11 Bush, 458 (1S75). 
 
 w Gerding v. Walter, 29 Mo. 426 (1860). But see White v. Sheldon, 4Nev. 280 (1868.) 
 
RULE 70.] PRESUMPTIONS FROM COURSE OF NATURE. 305 
 
 XIII. A. sends B., to whom he is not indebted, $5,000. The presump- 
 tion is that this is a loan and not a gift. 1 
 
 XIV. In the absence of C. in a foreign country, F. sent to the wife of 
 C. a check for $500, which 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. 2 
 
 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 testifies that it had 
 not been paid. There is no presumption that it had been released by the 
 father. 8 
 
 XVI. H. and D. bought certain land and executed a mortgage for the 
 purchase money. H. 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. The presumption is that A. did not consent to it. 6 
 
 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. 6 
 
 In case 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," 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." 
 
 1 Eichardson's Estate, 13 Phila. 241 (1879). 
 
 s Fioklin v. Carrington, 31 Gratt. 219 (1878). 
 
 a Grey ». Grey, 47 N. T. 552 (1872). 
 
 * Duncan t>. Drnry, 9 Pa. St. 332; 49 Am. Dec. 565 (1848). 
 
 « McNnlty v. Hurt, 86 N. T. 547 (1881). 
 
 6 Roberts v. Brownrigg, 9 Ala. 106 (1846). 
 
 20 
 
306 PRESUMPTIVE EVIDENCE. [RULE 70. 
 
 In case XV., it was said : " It has become a maxim in the 
 law that nemo donate facile jprcesumuntur. To sustain the 
 judgment would reverse that maxim. There is nothing left 
 to stand upon but a gift, and that the law does 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 fee. 1 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. 2 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- 
 ' gjiished 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 else 
 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 
 
 » Moore v. Harrisburg Bank, 8 Watts, 138. 
 2 Eichards v. Ayere, 1 W. & S. 485. 
 
RULE 70. J PEE8UMPTIONS FROM 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. 1 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. Tan- 
 gey; 2 United States v. Bradley ; 8 Postmaster-General v. 
 Rice;* Postmaster -General v. Norvell. 1 In all these cases 
 the acceptance of the bonds was presumed, although there 
 was no law authorizing the officer to take them." 
 
 l Barnes v. Webster, 16 Mo. 268 ; 57 Am. Deo. 232 (1852). 
 = 5 Pet. 115. 
 3 10 Pet. 343. 
 * Gilp. 561. 
 » Gilp. 120. 
 
CHAPTEE XV. 
 
 THE PRESUMPTION OF PAYMENT AND THE DIS- 
 CHARGE OF OBLIGATIONS. 
 
 RULE 71. — Independently of a statute of limitations 
 or in tlie absence of one, after a lapse of twenty 
 years the law raises a presumption of the payment of 
 bonds (A), mortgages (B), legacies (C), taxes (D), judg- 
 ments (E), the due execution of a trust (P), and the 
 performance of a covenant (G). 1 
 
 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. 2 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. 3 
 
 1 Also the payment of debts generally is presumed from lapse of time. McLellan 
 v. Crof ton, 6 Me. 307 (1830) ; Jefferson County v. Ferguson, 13 111. 33 (1851) ; Taylor v. 
 Dugger, 66 Ala. 444 (1880). 
 
 2 Oswald v. Leigh, 1 T. E. 270 (1786). 
 
 s Central Bank v. Heydorn, 48 N. Y. 260 (1872) ; Brock v. Savage, 31 Pa. Si. 422 
 (1858) ; Bellas ■;. Levan, 4 Watts, 295 (1835) ; Tilghman v. Fisher, 9 Id. 441 (1840) ; 
 Boyce v. Lake, 17 S. C. 481 (1832) ; Goorlwyn 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) ; 
 Bay v. Pearce, 84 N. C. 485 (1881) ; Bodman v. Hoops, 1 Dall. 85 (1784) ; Hopkirk v. 
 Page, 2 Brook. 20 (1822); Ludlow v. Van Camp, 6 N. J. Eq. 113; 11 Am. Deo. 629 
 (1823) ; and see Levy v. Merrill, 52 How. Pr. 360 (1876) ; Pattie v. Wilson, 25 Kas. 326 
 (1881) ; Cowie v. Fisher, 45 Mich. 629 (1881) ; Lyon v. Odell, 65 N. T. 28 (1875) ; Willing- 
 ham v. Chick, 14 S. C. 93 (1880). "A forbearance for the period of twenty years, 
 when unexplained, is a fact from which payment of a Bum demanded ought to be 
 presumed. To cite cases in support of a proposition so firmly established is quite 
 superfluous." Hosmer, O. J., in Lynde v. Dennison, 3 Conn. 391 (1820). 
 
 (308) 
 
EULE 71.] THE PEESUMPTION OF PAYMENT. 809 
 
 " These presumptions to be drawn by the courts in the 
 case of stale 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 Kolls in 
 Pickering v. Stamford, 2 " 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." 3 
 
 " 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 affairs 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 v. Baremore, 5 Johns. Ch. 545 (1831). 
 a 2 Ves. jr. 5S3 (1795). 
 
 8 And see Beeves v. Brymer, 6 Ves. Jr. 511 (1801) ; Motz v. Morean, 13 Moore P. O, 
 C. 376 (1859). 
 
310 PRESUMPTIVE EVIDENCE. [RULE 71. 
 
 called in as an indispensable auxiliary 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 
 length 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." 1 
 
 In Buchannanv. Rowland, 2 the 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 presumed. 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 vigilantibus et non dormientibus subserviunt 
 leges; secondly, because it 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). * 5 N. J. (L.) 721 (1820). 
 
EULE 71. J THE PRESUMPTION OF PAYMENT. 811 
 
 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 precipue 
 interest reipubliccg ut finis sit litium. Taking these 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 lying 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. 
 Stevens, one of the corporators of St. Ives, 1 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 offices, yet they 
 ought not to be disturbed after a great length of time. 
 In the Winchelsea Cases, 2 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. a Bur. 1692. 
 
312 PRESUMPTIVE EVIDENCE. [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 pi-oof 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 PRESUMPTION OP PAYMENT. 313 
 
 twenty years from its date, and that, too, upon the pre- 
 sumption that it is already paid, I say it will certainly not be 
 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 applica- 
 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 new 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 strengtened 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 either 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 non, 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 PKESUMPTIVE EVIDENCE. [EULE 71. 
 
 phreysv .Humphreys, 1 ~Lot& Chancellor Talbot says, thatafter 
 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, 2 on a demurrer to a bill to redeem a mortgage, where 
 it appeared hy the bill, that the mortgagees had been in 
 possession 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. Harrington, 3 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, waslaw- 
 f ul 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, 4 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 will intend it paid. From those cases, without going into 
 a multitude of others, I think the conclusion irresistible, 
 
 1 3 P. Wms. 395. s str. 813. 
 
 3 Same book, 286. i 6 Mod. 22. 
 
KULE 71.] THE PRESUMFHON OF PAYMENT. 315 
 
 not only that twenty years affords a presumption of pay- 
 ment, but that that presumption, standing alone, is conclu- 
 sive in the law, and issotobedeclaredbythe-court; and not 
 to be left to the jury to determine its effect. It is true that 
 Buller, in a later case in the King^ Bench, seems to growl 
 at this doctrine a little, and to express himself, as if he 
 thought the jury the sole judges of the effect. "Whether he 
 was led into this, from having given a hasty opinion at the 
 nisiprius, 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 whatever 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. 1 
 
 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. 2 
 
 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 be 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 Delaney o. Robinson, 2 Whart. 503 (1837) ; Denniston v. McEeen, 2 McLean, 252 
 (1810) ; and see Kirkpatrick v. Langphier, 1 Crasch C. O. 85 (1802) ; Lowe v. Stoweil, 
 i Jones (L.), 235 (1856) ; Rogers v. Bishop, 5 Blaokf. 108 (1839). 
 
3 Hi PHESTJMPTIVE EVIDENCE. [RULE 71. 
 
 well 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. 1 
 
 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. ShurtlefE, 2 Mete. 26 (1840) ; Jarvis v. Albro, 67 Me. 310 (1877) ; Trash 
 v. White, 3 Brown Ch. 291 (1791) and notes ; Christopher v. Sparks, 2 Jae. & W. 235 
 (1820) ; Gibson v. Fletcher, 1 Ch. Cas. 59; Leman v. Newnham, 1 Ves. sr. 51 (1747); 
 Toplis v. Baker, 2 Cox Ch. 118 (1789) ; Jackson v. Wood, 12 Johns. 242 (1815) ; Living- 
 ston v. Livingston, 4 Johns. Ch. 287 (1820) ; Wanmaker v. Van Buskirk, 1 Saxt. Ch. 
 6S5 ; 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. 
 2S9; Christopher v. Sparks, 2 Jac. & W. 10; Hughes v. Edmonds, 9 Wheat. 497; Dexter 
 v. Arnold, 3 Sum. 152; Dunham v. Minard, 4 Paige, 443; Bacon v. Mclntyre, 8 Mete. 
 86; Heyer v. Pruyne, 4 Paige, 443; Higginson v. Mein, 4 Cranch, 415; Collins v. 
 Teuney, 7 Johns. 279 ; Jackson v. Davis, B 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 «. 
 Marcy, supra; Evans v. Huff, 5 N. J. (Uq.) 360 (1846). 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 State, and never afterwards returned. Brobst v. Brock, 10 Wall. 
 519 (1870). 
 
RULE 71.] THE PRESUMPTION OP PAYMENT. 317 
 
 ancient transactions the law calls to its aid the doctrine of 
 presumption under which the jury are authorized to find the 
 existence of certain facta 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. These presumptions 
 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 
 English 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. White, 1 and 
 by the Master of the Rolls in Christopher v. Sparks, 2 in very 
 strong language ; 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. 2 3 Jac. & 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 
 Indies v. Leonard, 1 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 mortgagee has 
 never entered under his mortgage and no interest has been 
 paid 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." 2 
 
 In Wanmaker v. Van BusJcirk, 3 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 Eolls 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 12 Mass. 379. 
 
 2 Collins j>. Terry, 7 Johns. 278 ; Jackson v. Wood, 12 Id. 2i2 ; Jacfcson v. Pratt, 10 
 Id. 381; Giles v. Barremore, 5 Johns. Oh. 652. 
 
 8 1 Saxt. Ch. (N. J.) 685 (1832). 
 
EULE 71. J THE PRESUMPTION OF PAYMENT. 319 
 
 mortgage still be valid in a court of equity. But 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 does not determine 
 the right of the parties. It raises a presumption that the 
 mortgage is satisfied, and I am willing to admit that such 
 presumption is raised in favor of the payment 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 belief 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." 
 
 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. 1 
 
 II. B. by Ms 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. 2 
 
 " 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 Fnhrman «. London, 13 S. & E. 386 ; 15 Am. Dec. 608 (1825) ; Hayes v. VFhitall 13 
 N. J. (Eq.) 241 (1861). 
 
 > Foulk v. Brown", 2 Watts, 212 (1834) ; Bentley's Appeal, 99 Pa. St. 504 (1SS2) ; 
 Bonner v. Young, 68 Ala. 35 (1SS0). 
 
320 PRESUMPTIVE EVIDENCE. [RULE 71. 
 
 r>. 
 
 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 1840, the presump- 
 tion is that these taxes are paid. 1 
 
 II. An assessment was made in 1837 on the property of A. The pre- 
 sumption is, in 1862, that it has been paid. 2 
 
 "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. 3 
 
 II. A judgment rendered in 1842 is sued on in 1868. The presumption 
 is that it is paid. 4 
 
 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 i>. Springfield, 12 N. H. 328 (1841). 
 
 2 Fisher v. Mayor of New York. 6 Hun, 64 (1875) ; Hopkington v. Springfield, 12 
 N. H. 328 (1811) ; Dalton v. Bethlehem, 20 N. H. 505 (1846). 
 
 ' Bird v. Inslee, 23 N. J. (Eq.) 363 (1873) ; Kinsler v. Holmes, 2 S. C. 483 (1S71) j 
 Miller v. Smith, 16 Wend. 425 (1836) ; Inches v. Leonard, 12 Mass. 379 (1816) J Barned 
 v. Barned, 21 N. J. (Eq.) 245 (1870). From less than twenty years the presumption 
 does not arise. Daby v. Erickson, 45 N. T. 786 (1871) ; Lesley v. Nones, 7 S. & K. 410 
 (1821). 
 
 * Chapman v. Loomis, 36 Conn. 459 (1770), and see Wills v. Gibson, 7 Pa. St. 154 
 (1847) ; Holman's Appeal, 24 Pa. St. 174 (1854) ; Rhodes v. Turner, 21 Ala. 210; Bar- 
 nett v. Tarrance, 26 Ala. 463 ; Blackwell v. Blackwell, 33 Ala. 57 ; McCartney v. Bone, 
 40 Ala. 533 ; Eagland v. Morton, 41 Ala. 344 ; Worley v. High, 40 Ala. 171 ; Yarnell v. 
 Moore, 3 Cold. 173 (1866) ; Bender v. Montgomery, 8 Lea, 586 (1881). 
 
EULE 71.] THE PKESUMPTION OF PAYMENT. 321 
 
 the law will presume that the debts have been paid and the trust 
 executed. 1 
 
 a. 
 
 I. A covenant to deliver property is made by A. to B. After a lapsa 
 of time the presumption of Derformance arises. 2 
 
 In case I. it was said: «« It is contended that 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- 
 
 i Drysdale's Appeal, 14 Pa. St. 531 (1850) ; Webb o. Dean, 21 Id. 31 (1853) ; Pre- 
 vost v. Gratz, 6 Wheat. 181 (1845) ; Coleman v. Lane, 26 Ga. 615 (1858). And that an 
 estate was duly distributed. Hooper v. Howell, 52 Ga. 322 (1874). And, alter 
 twenty years, that an administrator was qualified. Battles ». Holley, 6 Me. 145 
 (1829) ; or has made a settlement. Austin v. Jordan, 35 Ala. 642 (1860) ; Gregg v. 
 Bethea, 6 Port. (Ala.) 9 (1837). 
 
 2 Phillips v. Morrison, 3 Bibb, 105; 6 Am. Dee. 638 (1813). 
 
 21 
 
322 PRESUMPTIVE EVIDENCE. [RULE 72; 
 
 served in the performance of such a contract, as there is 
 in the payment of a debt due by bond." 
 
 ItCXE 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 circum- 
 stances, may raise a presumption of fact that payment 
 has been 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." 1 This seems to be well settled. 2 
 
 "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 proceed- 
 ings 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. & E. 384 (1823) ; Boss v. McJunkin, li Id. 364 (1286) ; 
 Boss v. Darby, 4Munf. (Va.) 428 (1815). 
 
 2 Brubaker 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. Prindle, Id. 307 (1877) ; Daby v. Erickson, 45 N. Y. 786 (1871) ; Clark 
 v. Hopkins, 7 Johns. 556 (1811) ; Stockton v. Johnson, 6 B. Mon. 408 (1846). In Didlake 
 v. Robb, 1 Woods, 682, Hill, J., said: "Aside from the statute of limitations, * * * 
 the rule is well settled that after a debt has remained duo and payable for sixteen 
 years, the law holds such lapse of time as prima facie evidence of payment, which 
 prima facie evidence may be rebutted by proof of a subsequent promise to pay, or 
 some reasons why suit was not brought; and after the lapse of twenty years the 
 presumption of payment becomes conclusive." It would be hard to say where the 
 jurlge 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 the 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. 1 
 
 In Colsell v. Budd, 2 Lord 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." 
 
 Illustrations. 
 
 I. K. gave C. in 1837 a sealed note payable in sixty days. After both 
 K. and C. were 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 during this time. K. resided 
 near C. until his death. These facts raise the presumption that the note 
 was paid. 8 
 
 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. 6i0 (1882) ; citing Sadler v. Kennedy, 11 Id. 187; 
 Perkins v. Hawkins, 9 Gratt. 656 ; Goldhawk v. Duane, 2 Wash. 0. 0. 323. 
 "- 1 Camp. 27 (1807). 
 
 3 King v. Coulter, 2 Grant's Cas. 77 (1853). 
 * Miller v. Evans, 2 Cranoh 0. C. 72 (1813). 
 
324 PRESUMPTIVE EVIDENCE. [RULE 72. 
 
 he can not state the payments, being unable after search to obtain the 
 sheriff's docket. The presumption of payment arises. 1 
 
 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. 2 
 
 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. 3 
 
 VI. E. sues G. on a note payable in 1860; the action is brought in 
 1872. On several occasions after the note matured B. 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 
 English statute of limitations concerning 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. * * » The 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 beyond twenty years we require more per- 
 
 1 Moore v. Smith, 81 Pa. St. 183 (1876). 
 s Diamond v. Tobias, 12 Pa. St. 312 (1849). 
 8 Hughes v. Hughea, 54 Pa. St. 241 (1867). 
 « Garnier v. Eenner, 51 Ind. 374 (1875). 
 
RULE 72.] THE PRESUMPTION OF PAYMENT. 325 
 
 suasive circumstances to rebut the legal presumption. 
 Twenty years assumed as the point for that presumption, 
 the scale is reversed by which we measure the circum- 
 stances that tend to establish or countervail it. In both 
 instances it is for the jury to apply the proofs under the 
 direction of the court. If evidence be offered 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 really worth. 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 III., 
 " 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 exactly what 
 these circumstances may be 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 nulla 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 
 
328 PRESUMPTIVE EVIDENCE. [RULE 72. 
 
 the justice had said that the docket was lost. The justice 
 was 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. * * * On 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 that 
 the note had been paid. The conduct of E. 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 the legal period, but the presumption of law 
 
 arising from lapse of time may be rebutted 1 (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 are circumstances to account for the delay, 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; but where there was 
 none the presumption of law on the fact is that the judg- 
 ment was 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 particu- 
 lar and undivided belief. It prevails because the presump- 
 tion of law is that the obligor in that long 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 Grantwicke v. /Sampson, 2 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 jury to find it satisfied from the pre- 
 sumption arising from length of time.' " s 
 
 i Lyon v. Guild, 5 Heisk. 175 (1871) ; Thorpe v. Corwin, 20 N. J. (L.) 311 (1814). 
 
 = 2 Atk. 154. 
 
 a Cope v. Humphreys, 14 S. & E. 21 (1825) ; Webb v. Dean, 21 Pa. St. 81 (1853). 
 
328 PRESUMPTIVE EVIDENCE. [RULE 73. 
 
 Illustrations. 
 A. 
 
 I. A. in 1836 gives B. a bond payable in 1838. In 1860 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 taken 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 acknowledgement. 1 
 
 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 matr- 
 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 
 
 l Reed v. Eeed, 46 Pa. St. 239 (1863). 
 
RULE 73.] THE PRESUMPTION 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 that the debt has 
 not been paid, because the* presumption raises only aprima 
 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 facta 
 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. 1 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 
 
 l Leiper v. Erwin, 5 Terg. 97 (1833) ; Kilpatrick v.BraBhaer, 10 Heisk. 372 (1873). 
 
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 
 creditors 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. * * * B u t 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." 1 
 
 I. A 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. 8 
 
 " We take it," said the court in Grafton Bank v. Doe, 1 
 " to be well settled that courts are 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 tbe lapse of 
 time there are other circumstances showing that payment 
 has been made the jury may presume payment. 4 
 
 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 Ingraham v. Baldwin, 9 N. Y. 45 (1853). 
 8 19Vt.467 (1847). 
 
 « Milledge D.Gardner, 33 Ga. 397 (1863) ; Mayor of Kingston v. Horner, 1 Cowp. 102. 
 
RULE 73. J THE PKESUMPTION OF PAYMENT. 331 
 
 Lewis, 1 judgment had been recovered on a bond which 
 became due eighteen years and three months before 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 prima 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 Winchelsea Causes, 2 as to leave no doubt of the 
 origin 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 
 
 i 9 S. & E. 379 (11 Am. Dec. 733) (1823) . ' i Burr. 1962. 
 
332 PEESUMPTIVB 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 sufficient 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 stabitur presumptioni, donee probetur 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 
 Mansfield 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 bs 
 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. J THE PRESUMPTION OF PAYMENT. 333 
 
 RULE 74. — The presumption of payment may be re- 
 butted under Rule 73 by showing (at any time during 
 the period which creates the presumption) an acknowl- 
 edgment of the debt by the debtor ( A) ; or a payment 
 of part of it (B), or a known or notorious insolv- 
 ency (C) or incapacity (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 said: " 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 will 
 hold 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 what is his own." 
 
 Illustrations. 
 A. 
 
 I. A. gives B. a bond for the payment of |300 in 1817. An action is 
 brought on it in 1846. The presumption that it is paid is rebutted by 
 proof that in 1837 A., in the presence of a witness, acknowledged that it 
 was still due. 5 
 
 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. 3 
 
 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 P. 
 
 1 12 Vea. 367(1806). 
 
 2 Eby v. Eby, 5 Pa. St. 435 (1846) ; Bissell v. Jaudon, 16 Ohio St. 498 (1866). And a 
 demand proved to have been made on the debtor by the creditor rebuts the presump - 
 tion. Shields v. Pringle, 2 Bibb, 387 (1811) ; Wanmakcr v. Van Buskirk, 1 Saxt. Ch. 
 (K.J.) 685. 
 
 a Stout v. Levan, 3 Pa. St. 236 (1846). 
 
334 PRESUMPTIVE EVIDENCE. [RULE 74. 
 
 had obtained more than he from their father. This rebuts the presump- 
 tion of payment. 1 
 
 IV. C. gives a mortgage on his land to H. in 1854. In 1874 H. dies, 
 leaving the mortgage to his daughter M. In 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 the genuineness of his signature. 
 C. keeps the mortgage, and afterward states that it is lost. These facts 
 rebut the presumption of payment. 2 
 
 In 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 extinguishes 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 expiration of twenty years, admitted the exist- 
 ence of the debt, it would be converting legal presumption 
 into credulity to instruct a jury that they were authorized 
 to presume payment against positive evidence. The legal 
 
 ' Reed v. Reed, 46 Pa. St. 239 (1863). 
 
 » Murphy v. Coates, 33 N. J. (Eq.) 424 (1881). 
 
RULE 74.] THE PRESUMPTION OF PAYMENT. 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 years from the date of the bond and the debt 
 payable. 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 court 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 
 unpaid." 
 
 " 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 may be 
 rebutted. In this case C. has acknowledged both verbally 
 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 pay 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 claim 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 payment. 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." 1 
 
 B. 
 
 I. T., H. andS. signabond payable lnl880. The 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. 1 
 
 C. 
 
 I. A judgment is entered against L. in the year 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 destitutecir- 
 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 payment 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. 4 
 
 III. The presumption of the payment 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. 5 
 
 1 Bentley's Appeal, 99 Pa. St. 500 (1882). 
 
 2 Belo v. Spaoh, 85 N. 0. 192 (1881) ; Hamlin v. Hamlin, 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. 0. 36 1882). 
 
 » Farmers' Bank v. Leonard, i Harr. (Del.) 537 (1848) ; McClellan v. Orolton, 6 
 Me. 334 (1830) ; Fladong v. Winter, 19 Ves. 197 (1812) ; Wynne v. Waring, 1 Term Bep. 
 270; Kilpatrick v. Brashaer, lOHeisk. 872 (1873) ; Hopkirk v. Page, 2 Brock. 20 (1822). 
 
 * McKinder v. Littlejohn,4 Ired. (L.) 198 (1843). 
 
 6 McKinder v. Littlejohn, 1 Ired. (L.) 66 (1840). 
 
EULE 74. J THE PRESUMPTION OF PAYMENT. 337 
 
 IV. The issuance and return of an execution nulla bona is a circum- 
 stance rebutting the presumption of the payment of a judgment from 
 lapse of time. 1 
 
 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 delaying 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- 
 
 l Black v. Carpenter, 3 Baxt. 350 (1874). 
 22 
 
338 PRESUMPTIVE EVIDENCE. [RULE 74. 
 
 tional and unqualified acknowledgment or admission, either 
 express or implied, on the part of the defendant within 
 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 description 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 
 purpose 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. But if the jury are 
 satisfied from the evidence in this case that the defendant, 
 although in indigent or embarrassed circumstances since the 
 year 1820, had, during that period, either from visible prop- 
 erty or from other resources from which payment might 
 hnve been coerced by the use of legal process either 
 against his property or his person, the means of paying 
 
RULE 74. J THE PRESUMPTION OF PAYMENT. 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 property 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. * * * The 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 
 
340 PRESUMPTIVE EVIDENCE. [POJLE 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 debtor did not puy 
 because he could 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." 1 
 
 D. 
 
 I. M. sues 0. on a sealed note due in 1840. The suit is brought in 1861. 
 The presumption is that the note is paid. It is proved that between 1840 
 and 1860, O. was insane. This rebuts the presumption. 2 
 
 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. 3 
 
 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 1785, with promises of providing for 
 
 1 Grant v. Burgwyn, 84 N. 0. 650 (1831) ; Powell v. Brinkley, Bust). (N. C.) 154 
 (1852) 
 
 2 McLellan v. Orofton, 6 Me. 334 (1830). 
 
 s Wanmaker v. Van Buskirk, 1 Saxt. Ch. (X. J.) 685 (1832). 
 * Id. 
 
RULE 74.] THE PRESUMPTION OF PAYMENT. 341 
 
 him by his will," which he never did. The presumption of payment is 
 rebutted. 1 
 
 In cases I. and II. it was said : " The very situation of 
 the parties is of itself sufficient to rebut the presumption. 
 The mortgagor was a near relative ; he had married the 
 daughter of the mortgagee and had issue. The mortgagor 
 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- 
 
 i Enatioe v. Gaskins, 1 Wash. (Va.l 188 (1793). 
 
342 PRESUMPTIVE EVIDENCE. [RULE 74: 
 
 doubtedly true in general that 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." 
 
 F. 
 
 I. A bond, made by B. to A. in 1784, is sued on in 1813. 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. 1 
 
 II. Eent 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. 3 
 
 " 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 plaintiff was an alien enemy, is too 
 clear to admit of doubt." 4 
 
 G. 
 
 I. A bond payable on demand is executed in 1843. A suit is brought 
 on it in 1867. The presumption is that it has been paid. It appears 
 that though payable on demand it was not the intention of either party 
 that it should be paid till a future time. Thepresumptionisrebutted. 5 
 
 1 Newman v. Newman, 1 Stark. 101 (1815) ; Helm v. Jones, 3 Dana, 88 (1£35). 
 
 2 Bailey v. Jackson, 16 Johns 210; 8 Am. Deo. 309 (1819); Shields v. Pringle, 2 
 Bibb, 387 (1811). 
 
 a Hopkirk v. Page, 2 Brock. 20 (1822) ; Gwyn v. Porter, 5 Heisk. 254 (1871) ; Jack- 
 son v. Pierce, 10 Johns. 415 (1813) ; Montgomery v. Brucre, i N. J. (L.) 266 (ISIS) ; 
 Hale v. Pack, 10 W. Va. 145 (1877) ; Thomas v. Hunnicutt, 51 Ga. 337 (1875) ; Kilpatrick 
 v. Brashaer, 10 Heisk. 372 (1S73) ; Cannon v. Mathis, Id. 575 (1873). 
 
 4 Marshall, C, J., in Dunlop v. Ball, 2 Cranch, 184 (1804). 
 
 * Hale v. Pack, 10 W. Va. 145 (1877). 
 
EULE 74. J THE PRESUMPTION OF PAYMENT. 343 
 
 II. A surety to a note under seal against which by lapse of time a pre- 
 sumption of payment has arisen is asked during this time to sell his land 
 to another. 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. 1 
 
 In case I. it was said : " Do sufficient circumstances exist 
 in this case to rebut the presumption of payment ? 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. * * * The 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 the obligee borrowed it for the 
 express purpose 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 that a bond was paid before 
 it was due. Abating, therefore, such reasonable time after 
 the bond was given before, according to the understanding 
 of the parties, it was to be paid * * * an d 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 i>. Phillips, i Baxt. 243 (1S74). 
 
344 PRESUMPTIVE EVIDENCE. [KULE 75. 
 
 deed of trust until 187G. These facts rebut the presumption of payment 
 by lapse of time. 1 
 
 RULE 75 . — A presumption of payment other than 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 payment of 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 payment 2 (Gr). 
 
 Illustrations. 
 A. 
 
 I. A. claims a horse in B.'s possession. B. produces a receipt signed 
 by A. for a sum of money for » horse. The presumption is that A. had 
 sold the horse to B. and had received the purchase-money. 3 
 
 II. B. sues C. on a note payable 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 E., stating that S. wishes to buy goods of E., 
 and that 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 E. to that amount. 8 
 
 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 v. Poor School Soc.,75Va. 300 (1S81). For other oases in which the 
 circumstances of the case were held to rebut the presumption of payment from 
 lapse of time, see Koss v. Ellsworth, 49 Me. 416 (I860) ; Hendrick v. Bannister, 12 La. 
 Ann. 373 (1857) ; Wernet v. Mississquoi Lime Co., 46 Vt. 458 (1871) ; Tomlin v. Howe, 1 
 Gilmer (Va.), 8 (1820). 
 
 2 For illustration of cases where payment has been presumed from circum- 
 stances, see Patton v. Ast, 7 S. & R. 116 (1821) ; First Nat. Bk. v. McManigle, 69 Pa St. 
 156 (1871) ; Shinkle u. First Nat. Bk., 22 Ohio St. 517 (1872); Pope v. Dodson, 68 III. 
 360 (1871); 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 ». Lineberger, 70 N. C. 173 (1874) ; Robinson v. Allison, 36 Ala. 525 
 (1860). 
 
 » Obart «. Letson, 17 N. J. L. 78 (1839). 
 
 * Marston v. Wilcox, 2 111. 270 (1836). 
 
 » Rawson v. Adams, 17 Johns. 130 (1819) ; Child v. Moore, 6 N. H. 33 (1832). 
 
RULE 75. J THE PRESUMPTION OP PAYMENT. 
 
 345 
 
 sumptive evidence of payment, though without the indorsement by A. it 
 would not be. 1 
 
 V. A. sues B. on a note made by the latter. On the note were written 
 these words: "Cr. by cash rec'd, $20," through which a pen mark had 
 been drawn. The presumption is that the sum of $20 had been paid on 
 the note. 2 
 
 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. 1 
 
 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. 6 
 
 " The credit which was indorsed upon the note," it was 
 said in case V. "is undoubtedly equivalent to an admission 
 by him 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 W., 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 collecting his dues calls for his money ; the debtor 
 
 1 Egg v. Barnett, 3 Esp. Cas. 196 (1810). 
 a Graves v. Moore, 7 T. B. Mon. 341 (1828). 
 s Harrison v. Harrison, 9 Ala. 73 (1846). 
 
 * Woolen v. Nail, 18 Ga. 609 (1855) ; and see Scruggs v. Bibb, 33 Ala. 481 (1S59) as 
 to a receipt "in full of all claims." 
 
 * Clark v. Simmons, 4 Port. (Ala.) 14 (1836). 
 
346 PEESUMPTIVE EVIDENCE. [RULE 75; 
 
 party, equally vigilant in guarding his 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 signature be torn off; such beino- 
 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 ignorant of his rights at the time the schedule was 
 made. 1 
 
 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. 2 
 
 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. 3 
 
 III. Drafts drawn by B. on A. and accepted by A. in favor of C. axe 
 produced by A. The presumption is that A. has paid them. 4 
 
 1 Trenoulet v. Cenas, 6 Mart. (N. s.) 541; 17 Am. Deo. 195 (182S). 
 
 2 Connelly v. McKean, 64 Pa. St. 113 (1870) ; Birkey v. McMakin, Id. 343 (1870) 
 s Zeigler v. Gray, 12 S. & E. 42 (1824). 
 
 * Hays v. Samuels, 55 Tex. 560 (1881) . The presumption is that a man paying a 
 note will take it into his possession. Haywood v. 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 (1880). 
 
EULE 75. J THE PRESUMPTION OF PAYMENT. 347 
 
 * 
 IV. A. produces an order upon him signed by B., to deliver certain 
 articles. The presumption is that he has delivered the articles. 1 
 
 This rule is founded on a reasonable principle, which 
 is supported by numerous cases that where bills of exchange, 
 checks, orders for the payment of money or goods, promis- 
 sory notes or other obligations are paid, they, as a general 
 rule, go into the hands of the person paying them. It is to 
 be presumed, as already said, that a man paying a written 
 obligation will take it into his possession. 2 
 
 " 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 dealing the 
 security is given up to the party who pays it." 3 It has 
 been held that where 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. 4 
 
 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 payable 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). 
 
 2 Mills v. Hyde, 19 Vt. 59 (1846) ; Garloch v. Geortner, 7 Wend. 198 (1831) ; Weidner 
 v. Scweigert, 9 S. & IB.. 385 (1823) ; Kubey ». Culbertson, 35 Iowa, 264 (1872) ; Somer- 
 vail v. Gillies, 31 Wis. 152 (1872) ; Penn v. Edwards, 50 Ala. 63 (1873) ; Lane v. Farmer, 
 13 Ark. 64 (1852) ; Edwards v. Campbell, 23 Barb. 423 (1856) ; Bedell v. Carll, 33 N. Y. 
 581 (1865) ; Union Canal Co. v. Lloyd, 4 W. & S. 393 (1842) ; Carroll v. Bowie, 2 H. & 
 MeC. 457 (1848) ; Lavimore v. Wells, 29 Ohio St. 13 (1875) ; Bracken v. Miller, 4 W. & 
 S. 102 (1842) ; Bitter v. Shenk, 101 111. 337 (1882) ; Sutphen v. Cushman, 35 111. 187 
 (1864). 
 
 s Brombridge v. Osborne, 1 Stark. 374 (1816). 
 * Doty v. Janes, 28 Wis. 319 (1871). 
 
348 PRESUMPTIVE 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 pretend 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- v 
 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. 1 
 "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: 2 
 " they were no evidence of a loan, but having proved that 
 they were originally lent, of which the report does 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 
 
 i PJul v. Vanbatenberg, 2 Camp. 439 (1810) ; and soe Scholey v. Walsby, Peake, 25 
 (1820). 
 
 2 Connelly v. McKean, 64 Pa. St. 118 (1870). 
 
EULB 75. J THE PRESUMPTION OF PAYMENT. 349 
 
 consists with honesty. Besides which 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- 
 fDur 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 
 payment of money are prima facie evidence according to 
 the general current of the authorities." 
 
 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. 1 
 
 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 
 drawn through its face. The presumption is that it has been paid. 2 
 
 III. A mortgage is cancelled. This raises a presumption that it is dis- 
 charged. 3 
 
 In case I. it is said: " Pothier, in his work on Obliga- 
 tions, says that i 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 sufficient ground to presume a donation 
 
 i Gray v. Gray, 2 Lans. 173 (1869). Same as to note with name torn off. Powell 
 v. Swan, 5 Dana, 1 (1837). 
 
 a Pitcher v. Patrick, 1 Stew. & P. 478 (1832). 
 
 3 Trenton Banking Co. v. Woodruff, 2 N. J. (Eq.) 117 (1838). 
 
350 TEESUMPTIVE EVIDENCE. [EULE 75. 
 
 and release of the debt when its debtor gives up the secur- 
 ity, aud 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. * * * If 
 a promissory 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- 
 sumption is that all former rent is paid. 1 
 
 II. A tax assessed against E. for the year 1834 is not included in the 
 bill for 1835. The presumption is that it is paid. 2 
 
 1 Brewer v. Knapp, 1 Pick. 337 (1S23) ; Crompton «. Pratt, 105 Mass. 255 (1870). 
 
 2 Attleborough v. Middleborough, 10 Pick. 378 (1830) ; and see Bobbins v. Town- 
 send, 20 Id. 345 (1838). 
 
RULE 75.] THE PRESUMPTION OP 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 land are 
 proved to have been paid by A. for subsequent years. The presump- 
 tion is that the tax for 1842 is paid. 1 
 
 As said in another case 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. 2 
 
 E. 
 
 I. It Is proved that on January 1, 1880, B. borrowed a certain sum of 
 money from A. It Is also proved that on a subsequent day an unascer- 
 tained sum of money passed from B. to A. The presumption is that A. 
 was paid his debt. 3 
 
 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. testified : " 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. 5 
 
 "There is no principle better settled," is was said in 
 case I. , ' ' than that where one pays 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 plaintiff, had 
 
 1 Hodgdon v. Wright, 36 Me. 337 (1853). 
 
 s Decker v. Livingston, 15 Johns. 479 (1818) ; and see Walton ». Eldridgo, 1 Allen, 
 203 (1S61). 
 
 » Swain ». Ettling, 32 Pa. St. 486 (1859). When absence of other dealings is . 
 shown, proof of money paid by maker to payee would raise presumption that it was 
 paid on the note. Somervail v. Gillies, 31 Wis. 152 (1872). 
 
 4 Dowling v. Blaokman, 70 Ala. 303 (1881) ; Nichols v. Scott, 12 Vt. 47 (1840). 
 
 » Sayles v. Olmstead, 66 Barb. 590 (1873). 
 
352 PRESUMPTIVE EVIDENCE. [EULE 75. 
 
 paid the draft. On such evidence he could not recover 
 against 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- 
 turning 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. 1 
 
 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, 
 
 l Lucas v. Novisdieneki, 1 Esp. 296 (1795). The words " terms cash " on an unre- 
 ceipted bill of goods sent by a wholesale to a retail dealer raise no presumption ol 
 law that the goods were paid lor beiore they were shipped. Wellauer v. Fellows, 
 48 Wis. 105 (1879). 
 
 a Boyd v. Eeed, 6 Heisk. 631 (1871). 
 
EULE 75. J THE PRESUMPTION OE PAYMENT. 353 
 
 never been paid ; and as no such evidence was 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 that A. went to B.'s honse to settle for the hogs, 
 that he had no money when he went in, but had when he came out, which 
 money he stated he had received of B. The presumption is that A. was 
 paid. 1 
 
 II. A. gives B. a promissory note. This raises a presumption that B. 
 was not at this time indebted to A. 2 
 
 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. 3 
 
 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. 5 
 
 In Strong v. Hirst,* Dickerson, J., reviews the conflict- 
 ing authorities at length: "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. v. Meland j, 119 Mass. 
 450 (1876) ; Alvord v. Baker, 9 Wend. 323 (1832) ; Eisher v. The Frolic, 1 Woods, 92. 
 
 s De Freest v. Bloomingdale, 5 Denio, 304 (1848). 
 
 » Piper v. Wade, 57 Ga. 223 (1876). 
 
 * Campbell v. Hays, 1 Ind. 547 (1849) ; Kirchner v. Lewis, 27 Ind. 22 (1866) ; Grim- 
 mell «. Warner, 21 Iowa, 11 (1866) ; Green v. Kussell, 132 Mass. 538; Ely v. James, 123 
 Mass. 36;Melledge v. Boston Iron Co., 5 Cush. 158 ; French v. Price, 24 Pick. 13; Wes- 
 ton v. Wiley, 78 Ind. 55 (1SS1) ; Eisher v. The Frolic, 1 Woods, 92 (1870) ; Wallace v. 
 Agry, 4 Mason, 336 (1827) ; Tisdale v. Maxwell, 58 Ala. 40 (1877) ; Copeland v. Clark, 2 
 Ala. 388 (1841) ; Alabama, etc., Co. v. Sanford, 36 Ala. 703 (1860). 
 
 6 Ward v. Howe, 38 N. H. 35 (1859) ; Vail v. Vail, 4 N. T. 312 (1850) ; Matteson «-. 
 Ellsworth, 33 Wis. 488 '1873) ; May v. Gamble, 14 Fla. 467 (1874). 
 
 « 61 Me. 9 (1871). 
 
354 PRESUMPTIVE EVIDENCE. [RULE 75. 
 
 Thatcher v. Dinsmore, 1 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 holdingthe 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. 2 Such, also, is the doctrine of the civil law and of 
 the States and countries that have adopted that system of 
 jurisprudence. 3 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. 4 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. Ifobleboro, 6 
 Pomeroy v. Rice, 6 Melledge v. Boston Iron Co., 7 Zerano 
 v. Wilson, 8 Perrin v. Kean, 9 Paine v. Dwinal. 10 The 
 courts in these States also hold that the 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 Maes. 299 (1809). 
 
 2 Peter v. Beverly, 10 Pet. 532; Ward v. Evans, Ld. Raym. 928; Musser v. Price, 4 
 East, 197 ; Vail v. Poster, 4 N. Y. 312 ; Ward v. Howe, 38 X. H. 35. 
 
 3 Wallace v. Agry, 4 Mason, 344. 
 
 * Davis v. Dodd, 4 Taunt. 602 ; Holmes v. DeCamp, 1 Johns. 34 ; Hughe's v. Wheeler, 
 8 Cow. 77 ; Schemmelpeuich v. Bayard, 4 Pet. 264 ; Rangier v. Morton, i Watts, 266. 
 s 2 Me. 121. 
 « 16 Pick. 22. 
 ' 5 Cush. 158. 
 » 8 Cush. 424. 
 » 19 Me. 355. 
 M 53 Me. 53. 
 
RULE 78. J "THE PRESUMPTION OF PAYMENT. 355 
 
 any fraud in giving it, or it is accepted under any ignorance 
 of the, facts or a misapprehension of the rights of the par- 
 ties. 1 
 
 A payment made on a general account is presumed to 
 to have been applied to the oldest items. 2 Where payment 
 is voluntarily made and accepted as a full compensation, it 
 is to be presumed that the parties measured the loss by the 
 same rule that the law would apply to it. 3 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. 4 The presumption of law is that a bill or order on 
 a third person for a debt is taken as a conditional payment 
 only. 6 
 
 RULE 76. — The presumption in Bole 75 (B and C) 
 does 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 o. Price, 24 Pick. 21 ; Paine v. Dwinal, 53 Me. 63. 
 
 2 Bancroft v. Holton, 59 N. H. 141 (1879). 
 
 8 Kobeson v. Schuylkill Nav. Co., 3 Grant's Cas. 190 (1855). 
 * Woods v. Woods, 127 Mass. 141 (1879). 
 
 6 Haines v. Pearce, 41 Md. 221 (1874) ; Peter v. Beverly, 10 Pet. 532 (1836). 
 6 Grey v. Grey, 47 N. Y. 552 (1972) ; Kenney v. Public Administrator, 2 Bradf. 319 
 (1853). 
 
356 PRESUMPTIVE 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 ker>t. 
 
 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. In a suit on the note by B. there is no presumption that A. 
 had paid it. 1 
 
 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. — The presumption of payment is stronger 
 than the presumption of continuance, but weaker 
 than the presumption of innocence. 
 
 Illustrations. 
 
 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. 
 
 i Mechanics' Bank v. Wright, 53 Mo. 153 (1873) 
 
KULE 77. J THE PRESUMPTION OF PAYMENT. 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 that he would have violated his duty in 
 paying without a decree) conflict, and the latter must prevail. 1 
 
 In case I. it was said: "It has been further 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 
 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 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 be presumed; they must be proved." 
 
 i Potter v. Titcomb, 7 Me. 302 (1831). 
 
CHAPTEK XVI. 
 
 PRESUMPTIONS 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. 1 
 
 Illustrations. 
 
 I. An action is brought in New York on a policy' of life insurance, 
 •which contained » 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. 2 
 
 1 McAnally v. O'Neal, B6 Ala. 299 (1876); Connor ». Trawick, 37 Ala. 289 (1661); 
 Averett v. Thompson, 15 Ala. 678 (1849) ; Cox v. Morrow, 14 Ark. 603 (1854) ; RoblhBon 
 v. Dauchy, 3 Barb. 20 (1818) ; Stokes v. Macken, 62 Barb. 149 (1861) ; Henthorn v. Doe, 
 
 1 Black*. 157 (1822) ; Abell v. Douglas, 1 Denio, 305 (1847) ; Starr v. Peek, 1 Hill, 270 
 (1841) ; Crake v. Crake, 18 Ind. 156 (1862) ; Dalton v. Lusk, 16 Mo. Ill (1852) ; Henry 
 v. Boot, 33 N. Y. 551 (1865) ; Goodman v. Griffin, 3 Stew. (Ala.) 160 (1830) ; Ee High, 
 
 2 Doug. (Mich.) 515 (1847); Holmes v. Mallett, 1 Morris (la.), 82 (1810); Dubois v. 
 Mason, 127 Mass. 37 (1879) ; Warren v. Lusk, 16 Mo. Ill (1852) ; Davis r. Bowling, 19 
 Mo. 651 (1854) ; Hydriok v. Burke, 30 Ark. 121 (1875) ; Seaborn v. Henry, 30 Ark. 469 
 (1875) ; Hall v. Pillow, 31 Ark. 32 (1876) ; Bnckinghouse v. Gregg, 19 Ind. 401 '(1862) ; 
 Schurman v. Marley, 29 Ind. 459 (1868) ; Rogers v. Zook, 86 Ind. 237 (1882) ; Haden 
 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 & E. 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. 
 511 (1881). McLear v. Hunsicker, 29 La. Ann. 539 (1877), decides that an officer in 
 another State will be presnmed to have no greater powers than he has by the law 
 of Louisiana. Paine v. Noelke, 43 N. T. (S. C.) 176(1878). The courts of Indiana will 
 presume that a promissory note made payable in another State (e.g., Kentucky) is 
 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 of 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 Buch other State 
 of the United States, with perhaps an exception or two ; that law established no 
 rate of interest, and henoe 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. Gately, 18 Ind. 150 (1862). 
 
 s Bradley v. Mutual Benefit Life Ins. Co., 3 Lans. 341 (1870). 
 
 (358) 
 
EULE 78.] PRESUMPTIONS CONCERNING FOREIGN LAWS. 359 
 
 II. An action is brought in Missouri on a sight bill of exchange drawn 
 in New York. Days of grace upon such bills have been abolished by 
 statute in Missouri. The presumption nevertheless is that in New York 
 grace is still allowed as at common law. 1 
 
 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. 8 
 
 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. 3 
 
 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. 1 
 
 VI. A will made in Georgia is before the courts of Alabama. 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. 5 
 
 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 that 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. 6 ~ 
 
 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. 8 
 
 X. A married woman claims in the courts of Arkansas a sum of money 
 derived from the sale of her property in Tennessee. At common law this 
 
 1 Lucas v. Ladew, 28 Mo. 342 (1859). 
 
 ' Eeese v. Mutual Benefit Ins. Co., 23 N. T. 517 (1861). 
 
 ■ Thurston v. Peroival, 1 Pick. 415 (1823). 
 
 4 Thompson v. Morrow, 2 Cal. 99 (1852). 
 
 6 Sharp v. Sharp, 35 Ala. 674 (1860). 
 
 « Crouch ». Hall, 15111. 263 (1853). 
 
 » Griffin v. Custer, 5 Ircd. (Eq.) 413 (1848). 
 
 « Dunn v. Adams, 1 Ala. 527 ; 35 Am. Dec. 42 (1840). 
 
SCO PRESUMPTIVE EVIDENCE. [EULE 78. 
 
 belonged to her husband. The presumption is that it is so in Tennessee 
 and the married woman suing in Arkansas can not recover. 1 
 
 XI. The question in Kentucky is whether 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. 2 
 
 XII. A contract made in Pennsylvania is sued on in Kentucky, which 
 at common law would be champertous. The presumption is that it is 
 void in Pennsylvania. 3 
 
 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. 5 
 
 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 
 they are also void in Kansas. 6 
 
 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 be 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 (1878). 
 
 2 Greenwade v. Greenwade, 3 Dana, 497 (1835) ; Forsyth v. Baxter, 3 111. 9 (1839). 
 » Miles v. Collins, 1 Mete. (Ey.) 311 (1858). 
 
 * Eeese v. Harris, 27 Ala. 301 (1855). 
 
 <> 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 the parties have cohabitated as husband and wife, is prima facie a valid 
 marriage everywhere." And see U. S. i>. Jennegen, i Cranch C C 118 (1830); 
 Hynes v. McDermott, 82 N. T. 44 (1880). 
 
 6 Hill v. Wilier, 41 Ga. 449 (1871). 
 
RULE 78.] PRESUMPTIONS CONCERNING FOREIGN LAWS. 361 
 
 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 the same law is in 
 force there. * * * It certainly would be a violation of 
 the comity due to a sister State to uphold a contract which 
 would be void here 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 VII., " 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 vm. 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 
 change 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 law prevails. 
 Though some doubt was at one time thrown over the ques- 
 
362 PRESUMPTIVE EVIDENCE. [RULE 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 
 
EULH 78.] PEESUMPTIONS CONOEENING FOEEIGN LAWS. 363 
 
 the Sabbath day, 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 be enforced 
 under the laws of this State.' There is nothing disclosed 
 by this record relative 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 be valid outside her territorial' limits where made, 
 but conflicting with her own system of lawd 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 
 sought to be enforced was executed. As a general rule the 
 laws of the place when proved, lex hei 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 
 
364 PRESUMPTIVE EVIDENCE. [kULE 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, " Kemember 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 1 has expressly ruled that the payment 
 of money on a note was a transaction in violation of thfe 
 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 *A note signed 
 and delivered on Sunday is invalid.' 3 ' A note given on 
 Sunday for the price of a horse sold on that day is void.' 4 
 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 Keports, 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. s 48 Me. 198. 
 
 2 Pope v. Lynn, 50 Me. 83. * 26 Me. 464. 
 
EULE 79.] PRESUMPTIONS CONCERNING FOREIGN LAWS. 365 
 
 in conflict with it. Grouping, however, this mass of author- 
 ity from every section of this continent, we think it would 
 be unjust to the Christian civilization of this age to permit 
 any other presumption than the one we 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 
 held all contracts made in the pursuance of the 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." 
 
 EULE 79. — Acts which are criminal by the law of the 
 forum and are malum in se, will be 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. 1 
 
 II. A. is proved to hare robbed B. while in France, and to have killed 
 C. while in England. The question arising in a proceeding in the courts 
 of an American State, the presumption is that these acts were crimes by 
 the laws of France and England respectively. 2 
 
 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. 3 
 
 Eobbery, 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. 4 
 
 1 Cluff v. Mutual Benefit Life Ins. Co., IS Allen, 308 (1366) 
 
 ' Id. 
 
 'Id. 
 
 * Cluff v. Mutual Benefit Life Ins. Co.,13 Allen, 308 (1866). 
 
366 presumptive: evidence. [rule 80. 
 
 RULE SO. — The term "another state or country" 
 within Rule 78 does not (in the United States) include 
 a state or country which has never been subject 
 to the common law of England (A) or a tribe or 
 nation uncivilized (B). 
 
 Illustrations. 
 
 I. An action is brought in Missouri to recover damages for breach of 
 a parol promise made in 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. 1 
 
 II. In a dispute concerning property in the New York courts, the law 
 of Russia as to husband and wife is in question. There is no pre- 
 sumption that the common law of New York 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 
 in Texas is the rule of the common law. 3 
 
 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. 622 (18S0). 
 
 s Savage v. O'Neil, 44 N. T. 298 (1871), overruling Savage v. O'Neil, 42 Barb. 374 
 (1864). And see Owen v. Boyle, 15 Me. 147 (1838) ; 32 Am. Dee. 143. 
 s Norris v. Harris, 16 Oal. 226 (1860). 
 
RULE 80.] PRESUMPTIONS CONCERNING FOREIGN LAWS. 367 
 
 where the property upon which it operated was situated. 
 To that law we must resort to determine the capacity of the 
 testator, the extent of his power of disposition, and the Con- 
 ditions upon which the power of alienation vested in the 
 guardian was to be exercised. 1 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. 2 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. 3 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 
 
 l Jarman on Wills, 1 ; 2 Greenl. on Ev., sec. 671. 
 
 s 1 Kent's Comm. 343. 
 
 8 See Inge v. Murphy, 10 Ala. 895. 
 
368 PRESUMPTIVE EVIDENCE. [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. 1 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 jurisprudence 
 of the other States." 
 
 In a New York case, 2 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 upon municipal- 
 
 J 1 Black. 107; 1 Story on the Cons. 150. 
 
 - Thompson v. Ketcham, 8 Johns. 190 (1811). 
 
EULE 81. J PRESUMPTIONS CONCERNING FOREIGN LAWS. 369 
 
 regulation ; and what the foreign law is 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 have sold certain property under such power. The 
 court will not presume that the common law in this respect is the law of 
 the Creeks. 2 
 
 " 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. * * * But 
 we are not prepared to say that we will presume the exis- 
 tence of the common law in a semi-civilized nation of In- 
 dians, acting under usages 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 English statute s 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 v. Fabrigas, Cowp. 174 (1774), Lord Mansfield said: "But It is 
 objected that supposing the defendant to have acted as the Spanish Governor was 
 empowered to do before, how is it to be known here that by the 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 Trench settlement, the construc- 
 tion of which depends upon the custom of Paris, witnesses must be received to 
 explain what the customs is as evidence is received of customs in respect to trade. 
 So in the supreme resort before the king in council, the Privy Council determines 
 all cases that arise in the plantations, in Gibraltar, or Morocco, or Jersey or Guern- 
 sey, and they inform themselves by having the law stated to them." And see Male 
 ». Roberts, 3 Esp. 163 (1802). 
 
 2 Du Val v. Marshall, 30 Ark. 230 (1875). 
 * 9 Anne, c. 14. 
 
 4 Tatman v. Strader, 23 111. 493 (1860) ; see, Shorpshire v. Glasscock, 4 Mo. 536. 
 24 
 
370 PRESUMPTIVE EVIDENCE. [RULE 82. 
 
 RULE 82. — The term "law" within Rule 78 is re- 
 stricted to the common law of the foruin, or the com- 
 mercial law (A) and does not include the statute law 
 of the forum 1 (B). 
 
 Illustrations. 
 A. 
 
 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- 
 land is like that of Massachusetts. 2 
 
 " 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. Hosea, 3 Harr. (Del.) 77 (1840) ; 
 Baughan v. Graham, 1 How. (Miss.) 220 (1835) ; State u. Twitty, 2 Hawks, 441 (1823) ; 
 Mason v. Wash, Breese, 16 (1822) ; Johnson v. Chambers, 12 Ind. 102 (1859) ; Davis v. 
 Rogers, 14 Ind. 421 (1860) ; Wakeman v. Marqnand, 5 Mart. (If. s.) 270 (1826) ; Walker 
 v. Maxwell, 1 Mass. 103 (1804) ; Legg v. Legg, 8 Mass. 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. t Hardy, 1 Mich. 56 (1848) ; Leak v. Elliott, 4 Mo. 450 (1836) ; Hite v. 
 Lenhcrt, 7 Mo. 22 (1841) ; Wilson v. Cockrill, 8 Mo. 7 (1843) ; Seymour v. Sturgcss, 26 
 N. T. 135 (1862) ; MeCulloch v. Norwood, 58 N. Y. 567 (1874) ; Chapin v. Dobson, 78 N. 
 Y. 74 (1879) ; Locke v. Huling, 24 Tex. 311 (1859) ; Territt v. Woodruff, 19 Vt. 182 (1847) ; 
 Lincoln v. Battelle, 6 Wend. 476 (1S31); Chanouie v. Fowler, 3 Wend. 173 (1829); 
 Holmes v. Brighton, 10 Wend. 75 (1833) ; Hull v. Augustine, 23 Wis. 383 (186S) ; Walsh 
 v. Dart, 13 Wis. 635 (1S60) ; Kenyon v. Smith, 24 Ind. 11 (1865) ; People v. Lambert, 5 
 Mich. 356 (1858) ; Ramsey v. MeCauley, 2 Tex. 190 (1S49) ; Spawn v. Crummerford, 20 
 Tex. 216 (1857). Some cases seem to hold a different doctrine. Hickman v. Alpaugh, 
 21 Cal. 228 (1862) ; Hill v. Grigsby, 32 Cal. 55 (1867) ; Martin v. Hazard Powder Co., 2 
 Col. 597 (1S75) ; 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. Allnutt, 12 La 465 (1838) ; Atkinson v. Atkinson, 15 La. Ann. 491 (1860) ; Conally v. 
 Riley, 25 Md. 402 (1866) ; Harper v. Harper, 1 II. &McH. 687; Gardner ». Lewis, 7 Gill, 
 377; Campbell v. Miller, 3 Mart. (N. s.) 149 (1824) ; Smoot v. Baldwin, 1 Mart. (N. S.) 
 528 (1823) ; Bnmhall 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. Rugly, 23 Tex. 639 (1859) ; Rape v. Heaton, 9 Wis. 338 (1850) ; Sadler v. Ander- 
 son, 17 Tex. 245 (1856) ; Cannon v. North Western Ins. Co., 29 Hun, 470 (1883) ; Rogesr 
 v. Hatch, S 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 
 (1860). The matter Is regulated by statute in Kentucky. Thomas v. Beckman, 1 B, 
 Mon. 34 (1840). 
 
 2 Chase v. Alliance Ins. Co. 9 Allen, 311 (1864). 
 
RULE 82.] PRESUMPTIONS CONCERNING FOREIGN LAWS. 371 
 
 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. 
 The 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 we 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. 1 The general 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 2 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," 
 
 l Wood v. Corl, 4 Mete. 203; Cribbs o. Adams, 13 Gray, 697. 
 ' 64 Ala. 157 (1879). 
 
372 PRESUMPTIVE EVIDENCE. [RULE 82. 
 
 etc. In an Illinois case the court say : " If it had appeared 
 upon its face, or had been shown by evidence that the 
 contract was made in another State or country, 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 property, 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. 2 Thus, in every 
 State the presumption is that in every other State three 
 days grace is allowed on bills of -exchange and promissory 
 notes. 3 In Dollfus v. FroscA,* 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 in Michigan 
 is sought to be enforced. Such trusts are enforceable in New York 
 by the provisions of a statute. There is no presumption that such 
 statute is in force in Michigan. 5 
 
 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. 6 
 
 III. In an action brought in 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 in Michigan. It is objected that to be valid it should be in 
 
 1 Smith v. Whitafcer, 23 111. 367 (1860). 
 
 2 Bemia v. McKenzie, 13 Fla. 653 (1S70) ; Leavenworth v. Brockway, 2 Hill, 201 
 (1842) ; Cribba v. Adams, 13 Gray, 597 (1859), 
 
 » Wood v. Carl, 4 Meto. 203 (1842). 
 
 < IDenio, 367 (1845). 
 
 6 Throop v. Hatch, 3 Abb. Pr. 27 (1856) ; Forbes v. Scannell, 13 Cal. 278 (1859). 
 
 Pomoroy v. Ainsworth, 22 Barb. 118 (1S56) ; City Savings Bank v. BidweU, 29 
 Barb. 325 (1859) ; McOraney v. Alden, 46 Barb. 274 (1866). 
 
 1 White v. Knapp, 47 Barb. 549 (1867) ; Houghtaling v. BaU, 19 Mo. 84 (1853). 
 
EDLE 82. J PRESUMPTIONS CONCERNING FOREIGN LAWS. 373 
 
 writing. The presumption is that the laws, of Illinois do not require 
 this. 1 
 
 "V. A. sues B. in Missouri 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 thisnot being proved the action will 
 not lie. 1 
 
 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. 3 
 
 VII. An action is brought in New York on a note made in Florida. 
 The defense is usury. It appears that by 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. 4 
 
 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. 6 
 
 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 
 legislation 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 v. Maxon, 19 Mich. 186 (1869). 
 
 * Bundy ». Hart, 46 Mo. 462 (1870). 
 
 s WinWord v. Panama E. Co., 23 N. T. 465 (1861). 
 
 * Cntler v. Wright, 22 N. Y. 472 (1860). 
 
 * Murphy v. Collins, 121 Mass. 6 (1876). 
 
374 PRESUMPTIVE EVIDENCE. [RULE 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, 1 it was said: " The true rule assumes to be founded 
 on a probabilitv that it will lead to the actual truth, and is 
 
 l Wright v. Delafleld, 23 Barb. 198 (1857). 
 
RULE 82.] PRESUMPTIONS CONCERNING FOREIGN LAWS. 375 
 
 not a technical rule 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 are 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 most com- 
 patible with truth that interest at some rate is allowed in 
 every State. Although the rate of interest therefore ^s 
 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 Ave know to be a new law (as is 
 our statute j 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 wa3 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. [RULE 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 be 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 
 
EULE 82.] PRESUMPTIONS CONCERNING FOREIGN LAWS. 377 
 
 can not presume that, the Legislature of another State has 
 adopted all of our statutes, and therefore, we must 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 
 be 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 secoud 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 
 trifling 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 general 
 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, and 
 
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 fade 
 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 w,as 
 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.] PRESUMPTIONS CONCERNING FOREIGN LAWS. , 379 
 
 common law the contract would be perfectly good. We 
 are not, I think, called upon to presume that foreign States 
 have adopted all our penal legislation." 
 
 " The contract," it was said in case VIII., " was not void 
 by the common 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." 1 
 
 RULE 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. 
 
 Elustration. 
 
 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 land of another is liable to be taken for 
 rent inarrear. 2 
 
 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 
 
 I Newton®. Cocke, 10 Ark. 169 (1849). 
 
 * Owen v. Bogle, 15 Me. 147; 32 Am. Dec. 143 (1838) ; Smith v. Gould, 4 Moore P. 
 L5 (1842). 
 
380 PRESUMPTIVE EVIDENCE. [PDLE 83. 
 
 factor were not liable to be distrained for the factor's rent. 1 
 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. 2 And the same 
 rule of exemption has been decided to apply to goods in a 
 common warehouse. 3 This is not the proper occasion to 
 examine into the extent of the exception in favor of trade 
 and commerce, further than to show tbat 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 fall knowledge of it." 
 
 1 Gilman v. Eaton, 3 Brod. & B. 75. 
 • Thompson v. Mashiter, 1 Bing. 283. 
 8 Mathlas v. Mesnard, 2 0. & P. 353. 
 
CHAPTER XYII. 
 
 THE PRESUMPTIONS FROM THE ALTERATION OF IN- 
 STRUMENTS. 
 
 BULB 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. 1 
 
 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- 
 sumedto have been made by.the parties or the scrivener before the deed 
 was executed and delivered. 2 
 
 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 signed. 1 
 
 1 Cumberland Bank v. Hall, 6 N. J. L. 215 (1882) ; Commissioners v. Hanion, 1N,4 
 McC. 554 (1819) ; Eankin v. Blackwell, 2 Johns. Cas. 198 (1801) ; Eunnion v. Crane, 4 
 Blackf. 466 (1838) ; Commercial Bank v. Lum, 1 How. (Miss.) 414 (1843) ; Beed v. Kemp, 
 16 111. 445 (1855) ; Jouden v. Boyoe, 33 Mich. 302 (1876) ; Stevens v. Martin, 18 Pa. St. 
 101 (1851) ; Little v. Herndon, 10 Wall. 31 (1869) ; Malarin v. United States, 1 Id. 288 
 (1863); Smith, v. United States,, 2. Id. 232 (1864); Eamsey v. McCue, 21 Gratt. 349 
 (1871) ; Matthews v. Coalter, 9 Mo. 705 (1846) ; MoCormick v. Fitzmorrls, 39 Id. 24 
 (1866) ; Aeker ». Ledyard, 8 Barb. 514 (1850) ; Gooch v. Bryant, IS Me 365 (1836) ; Crab- 
 tree v. Clark, 20 Mo. 337 (1841) ; Clark v. Eogers, 2 Id. 147 (1822) ; Wiokes v. Caulk, 5 
 H. & J. 41 (1820) ; Miliken v. Martin, 66 HI. 13 (1872) ; Putnam v. Clark, 27 N. J. (Eq.) 
 412 (1878); Wikoff's Appeal, 15 Pa. St. 218 (1850); Ely v. Ely, 6 Gray, 439 (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 
 «7. Beauchamp, 2 La. 290 (1831) ; Pipes v. Hardesty, 9 La. Ann. 152 (1854). An impos- 
 sible date raises a presumption of ante or post dating — not of alteration. Davis v. 
 Loftln, 6 Tex. 490(1851). 
 
 s Cases cited in last note. 
 
 » Id.; Graham v. O'FaUon, 4 Mo. 607 (1837). 
 
 * Id. 
 
 (381) 
 
382 PRESUMPTIVE EVIDENCE. [EULE 84. 
 
 IV. On the face of an assessment an erasure appears. The presump- 
 tion is that this was made before it was signed. 1 
 
 V. There is an alteration in the minute book of a corporation. The 
 presumption is that it was made before the book was signed. 2 
 
 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. 3 
 
 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. 4 
 
 VIII. An action is brought on a contract to indemnify A. on certain 
 notes made on March 10th. The contract is also dated March 16th, but 
 when produced it is seen that the figures "16 " describing the notes have 
 been written over the figures "15," and 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. 6 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 
 
 l North River Meadow Co. v. Shrewsbury Church, 22 N. J. L. 427 (1850). 
 
 3 Stevens Hospital v. Dyas, 15 Ir. Eq. (N. s.) 405 (1S63). 
 
 » Boothby v. Stanley, 34 Me. 515 (1852). "Fraud," 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." 
 
 * Inglish v. Breneman, 9 Ark. 122; 47 Am. Dec. 735 (1848). 
 
 6 Beaman v. Russell , 20 Vt. 205 ; 49 Am. Dec. 775 (1848) . 
 
 Tatum v. Catamore, 16 Q. B. 745 (1351). 
 
EDLE 84. J ALTERATION OF INSTRUMENTS. 383 
 
 case it was said : ' ' The rule may now be thus stated : An 
 alteration of a written instrument, if nothing appears to 
 the contrary, should 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 be determined 
 by the appearance of the instrument itself or from that 
 and other evidence in the case is for the jury. 1 
 
 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 be 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 by 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, 
 
 i Printrup v. Mitchell, 17 Ga. Bp4 (1855). 
 
384 PRESUMPTIVE EVIDENCE. [RULE 84. 
 
 in many instances be 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 upon 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 indifferent as to him, and favor- 
 able to some other. No presumption in such case can 
 exist against him." x 
 
 There are, however, 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 invalidate 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 8 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 Maybee v. Sniffen, 2 B. D. Smith, 1 (1851). 
 a 2 Wend. 535; 20 Am. Deo. 649 (1829). 
 • 7 Vol. p. 405. 
 
RULE 84.] ALTERATION OF INSTRUMENTS. 385 
 
 the delivery that a rasure or interlineation can effect a deed, 
 and even then they are in some cases immaterial.' Mr. 
 Justice Butler in his treatise x 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 Dot is for the 
 jury to determine." In Wilson v. Henderson, 1 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 
 Sailer/ v. Taylor? in 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. 
 
 2 9 S. & M. 375 ; 48 Am. Deo. 716 (1818). 
 8 11 Conn. 531. 
 
 25 
 
386 PRESUMPTIVE EVIDENCE. [EULE 84. 
 
 destroyed, when the alteration operates prejudicially to the 
 holder." 1 
 
 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. 2 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. 8 
 
 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 Burnham v. Ayerf 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 Hill v. Barnes, 6 the date in a note which had origin- 
 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, subject 
 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 from the appearance of the note 
 itself, or otherwise, to show when the alteration was made, 
 
 1 And see HefEner v. Wenrich, 32 Pa. St. 423 (1859) ; Hill v. Cooley, 46 Pa. St. 259 
 (1863). 
 
 2 Morris v, Vanderen, 1 Dall. 67 (1782). And see Paine v. Edsell, 19 Pa. St. 178 
 (1852) ; Prevost v. Gratz, Pet. C. 0. 364 (1816) ; Taylor v. Orowninshield, 5 N. T. Leg. 
 Obs. 209(1816), 
 
 3 Stahl v. Berger, 10 S. & E. 171 (1823) ; Babb v. Clemson, Id. 424 (1823) ; Barrington 
 v. Bank of Washington, U Id. 422 (1826) ; Ilefflinger v. Shutz, 16 Id. 46 (1827) ; Hudson 
 v. Keel, 5 Pa. St. 279 (1S47) ; Vanhorne v. Dorranoe, 2 Dall. 306 (1795). 
 
 4 Huntington v. Finch, 3 Ohio St. 445 (1854). 
 » 35 N. H. 351 (1857). 
 
 6 11N.H. 395(1840). 
 
RULE 84.] ALTERATION OF INSTRUMENTS. 387 
 
 it must be presumed to have been made subsequent to the 
 execution and delivery of the note. This rule is necessary 
 for the security of the maker, who 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 
 Humphreys v. Guilow, 1 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. 2 
 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. A&hton,* 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 v. Palmer,* is that the onus is cast upon the 
 party who seeks to derive an advantage from an alteration 
 in a will 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. 385. 
 
 2 Greville v. Tyler, 7 Moore P. C. 320 (1851) ; Cooper v. Brockett, 4 Id. 414 (1844) ; 
 Tatum v. Catamore, 16 Q. B. 745 (1851) ; Shallcross v. Palmer, 15 Jur. 836 (1852) ; 
 Taylor v. Mosely, 6 0. & P. 273 (1833) ; Christmas . v. Whonyates, 3 Swab. & Tr. 81 
 (1862) ; Simmons v. Rudall, 1 Sim. (?f. s.) 136 (1S50) ; Buck v. Buck, 6 Ecc. & Mar 
 681 (1848) ; Ee Duffy, Ir. Rep. 5 Eq. 506 (1871). 
 
 a Johns. &M. 115 (1860). 
 * 16 Q. B. 747. 
 
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 you presume 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 with 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 instru- 
 ments. If a general statement by a testatrix that she had 
 made some alterations in her will were to give validity to 
 any 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." 1 
 
 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. 2 But, as pointed out by Hall, J., 2 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 And see Re Cadge, L. R. 1 P. & D. 1543 (1868). 
 
 2 Johnson v. Duke of Marlborough, 2 Stark. 313 (1818) ; Bishop v Chambre, 3 0. 
 & P. 55 (1S27) ; Knight v. Clements, 8 Ad. & El. 215 (1838) ; Clifford v. Parker, 2 Man. 
 & Gr. 910 (1841) ; Caress v. Tattersall, 2 Man. & Gr. 891 (1S41) ; Anderson v. Weston, 6 
 Bing. N. C. 302 (1810) ; Loykauif t>. Ashford, 12 Moore, 231 (1827) ; Sibley v. Fisher, 7 
 Ad. & El. 414 (1837) ; Honman & Dickinson, 5 Bing. 183 (1828). 
 
 8 Bcaman v. Russell, ante. 
 
RULE 8 5. J ALTERATION OP INSTRUMENTS. 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 be apparently in the hand- 
 writing of the party defending, and in either 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. 
 
 RULE 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 the 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- 
 
890 PRESUMPTIVE EVIDENCE. [RULE 85. 
 
 ficial to the party setting it up, he must explain it to the 
 satisfaction of the jury. 1 
 
 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. 2 
 
 Illustrations. 
 
 A. 
 
 I. An action is on a promissory note. The words, "with interest at 
 eight per cent " seem to be added in a different hand. The burden 
 is on the plaintiff to explain the alteration. 3 
 
 II. A sues B. as indorse? 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, butrefuses 
 to rule that this raises a presumption of alteration after its execution. 
 Held, error. 1 
 
 In Cox v. Palmer, 6 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. 568 (1850) ; Herrick v. Malin, 22 Wend. ST3 
 (1839) ; Croft v. White, 36 Miss. 455 (1858) ; Clark v. Eckstein, 22 Pa. St. 607 (1854) ; 
 Newcomb v. Presbury, 8 Mete. 406 (1844) ; Gillett v. Sweat, 6 111. 475 (1844) ; Davis v. 
 Carlisle, 6 Ala. 707 (1844). 
 
 2 White v. Hass, 32 Ala. 432 (18581. 
 
 3 Commercial Bank v. Lum, 6 How. (Miss.) 414 (1843) ; Bishop v. Chambre,3 C 
 & C. 55 (1827). 
 
 * Simpson v. Stackhouse, 9 Pa. St. 186; 49 Am. Dec. 554 (1848). 
 6 1 McCrary, 331 (1880). 
 
BULB 85.] ALTERATION OF INSTRUMENTS. 391 
 
 instrument as it stood before the insertion of interlined 
 words, or if it is in a handwriting different from the body 
 of the instrument, or appears to have been written with 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 with 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: "How 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 sponsor 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 stands 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 PKESUMPTIVE 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 
 he ought 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 be pre- 
 pared to show what it was when he received it. Now it is 
 agreed 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, 1 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 
 on the onus 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. 
 
RULE 85.] ALTERATION OF INSTRUMENTS. 39.3 
 
 B. 
 
 I. In an action on a written guaranty the words "and company" 
 appear therein in a different ink and handwriting from the rest of the 
 instrument. The burden is on the plaintiff to show that this was done 
 before the instrument was executed. 1 
 
 " We are not prepared to say," said Metcalf, J., 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 plaintiff. 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 
 instniment, 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 Smith v. McGowan, 2 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 different colors is used may or may not afford 
 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 
 
 l Wilde v. Armsby, 6 Cnsh. 314 (1850) ; Davis v. Jenny, lMeto. 223 (1840). And see 
 Crabtiee v. Clark, 20 Me. 337 (1841). 
 * 3 Barb. 400 (1848). 
 
394 PRESUMPTIVE 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. 1 
 
 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. 2 
 
 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- 
 ing 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 beneficiaf 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 Harr. (Del.) 404 (1840) ; Stoner v. Ellis, 6 Ind. 159 (1855). 
 
 2 Pullen v. Shaw, 3 Dev. 238. And see Sayre v. Reynolds, 5 N. J. L. 737 (1820); 
 Ooulson v. Watson, 9 Pet, 98 (1835) ; Farlee v. Farlee, 21 N. J. L. 284 (1848). 
 
EULE 85.] ALTERATION OF INSTRUMENTS. 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 be decided by the court, as formerly, we 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. Ellis, 1 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 evidenee as to 
 when the alteration was 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 weight in inducing this conclusion. 
 With us, the business of conveyancing does not pertain to 
 the legal profession exclusively. Where estates are large, 
 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 traffic. 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 where the business is in the hands 
 of a branch of the legal profession. The same may be 
 
 1 6 Ind. 159 (1855). 
 
396 PRESUMPTIVE EVIDENCE. [ROLE 85. 
 
 said in regard to all sorts of traffic so common among our 
 people, in which notes, agreements, and other contracts 
 are executed with little regard to professional accuracy. 
 To declare all these prima 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 
 plaintiS. 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. 1 
 
 In Dodge v. Haskell, 2 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 body 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. 264 (1857). And see Van Buren v. Coijkbnrn, 14 
 Barb. 118 (1852) ; Kidgeley v. Johnson, 11 Id. 540 (1851) ; Waring v. Smyth, 2 Barb. Ch. 
 11 (1S47.) 
 
 2 69 Me. 429 (1879). 
 
RULE 85^] alteration of instruments. 397 
 
 On the other hand the alteration may present indications of 
 fraud or forgery. "Whether it does or not is a question of 
 fact and not of law. It can not be a question of law to decide 
 whether a note is in two inks or one or two handwritings 
 or one, or why so written. It is said that alteration prima 
 facie 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 what alteration or degree or 
 kind of alteration may exist without being suspicious enough 
 to demand explanation is for the jury to settle." 
 
 B. 
 
 I. Suit was brought upon the following instrument: "Brown City, 
 April 1, 1847. — Against the tenth day 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 had been interlined. 
 The defendant, as required by statute, denied the execution of the instru- 
 ment under oath. The plaintiff was bound to explain the alteration. 1 
 
 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 Avrong, 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 
 
 l waiters 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 proving the altera- 
 tion— the execution being denied under oath — was held to be on the defendant. 
 Wells v. Moore, 15 Tex. 621 (1855) ; Muckleroy v. Bethany, 27 Id. 551 (1864). 
 
398 PRESUMPTIVE EVIDENCE. [RULE 85. 
 
 by way of defense or set-off, the execution of which by the 
 fourteenth section of the eighty-third chapter of theBevised 
 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 V 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 prima 
 facie presumption is unchanged; if it be, as was the case 
 here, we do not presume a forgery, but we hold the party 
 "offering 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 85.] ALTERATION OF INSTRUMENTS. 399 
 
 clause as having been made before signature, this is suffi- 
 cient, or if the similarity 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 be 
 ultimately found by the jury upon proofs to be adduced by 
 him who offers the evidence." 1 
 
 In Simpson v. Davis, 2 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 Bailey 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: "The 
 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 was 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. 246 (1854). 
 * 119 Mass. 269 (1876). 
 « 11 Conn. 531 (1836). 
 
PART IV. 
 
 PRESUMPTIONS IN THE LAW OF 
 REAL PROPERTY. 
 
 20 
 
 (401) 
 
CHAPTEE XVIIL 
 
 THE PRESUMPTIONS FROM POSSESSION AND LAPSE 
 
 OF TIME. 
 
 RULE 86. — Where it is shown that any person has for 
 a long period of time exercised any proprietary right 
 which might have had 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 cre- 
 ated by a proper instrument which has been lost. 1 
 
 Illustrations. 
 
 I. The question Is whether B. is entitled to recover from A. the pos- 
 session of lands which A.'s father and mother successively occupied from 
 1754 to 1793, and which B. had occupied without title from 1793 to 1809. 
 
 ' Thus, a grant is presumed from lapse of time. Field v. Brown, 24 Gratt. 74 
 (1873) ; Hardy v. McCullough, 23 Gratt. 251 (1873) ; Kooker v. Perkins, 14 Wis. 79 
 (1861) ; Hurst v. McNeil, 1 Wash. 0. 0. 70 (1S04) ; Kochell v. Holmes, 2 Bay, 487 (1803) ; 
 Frost v. Brown, 2 Bay, 133 (1798) ; Williams v. Donnell, 2 Head, 695 (1859) ; Marr v. 
 Gilliam, 1 Cold. 488 (I860) ; Grimes v. Bastrop, 26 Tex. 310 (1862) ; Taylor v. Watkins, 
 26 Tex. 688 (1S63) ; Rhodes v. Whitehead, 27 Tex. 304 (1863) ; Walker v. Hanks, 27 Tex. 
 535 (1864) ; Farrer v. Merrill, 1 Me. 17 (1820) ; Tinkham v. Arnold, 3 Me. 120 (1824) ; 
 Cheney v. Watkins, 1 H. & J. (Md.) 327 (1804) ; Sparhawk v. Billiard, 1 Mete. 95 (1810) ; 
 Proprietors v. Bullard, 2 Mete. 363 (1841). As a deed. Hepburn v. Auld, 5 Cranoh, 
 202 (1800) ; Weatherhead v. Baskerville, 11 How. 329 (1850) ; Townsend v. Downer, 
 32 Vt. 183 (1859) ; Melviu v. Locks and Canals, 17 Pick. 255 (1835) ; Newman v. Studley, 
 
 5 Mo. 291 (1838) ; Blair v. Marks, 27 Mo. 579 (1858) ; Chiles v. Cpnley, 2 Dana, 21 (1834). 
 Or a lease. Sellick v. Starr, 5 Vt. 255 (1833). And title to property generally from 
 possession. Borough of Birmingham v. Anderson, 40 Pa. St. 507 (1861) ; Warner v. 
 Henby, 47 Pa. St. 187 (1S64) ; Willey V. Day, 51 Pa. St. 51 (1865) ; Toungman v. Linn, 
 62 Pa. St. 413 (18G6) ; Glass v. Gilbert, 58 Pa. St. 266 (1868) ; Duke v. Thompson, 16 
 Ohio, 35 (1847) ; Society for Propagation of the Gospel v. Toung, 2 N. H. 310 (1S20) ; 
 Wendell v. Blanshard, 2 N. H. 456 (1822) ; Thompson v. Carr, 5 N. H. 510 (1831) ; 
 Cambridge v. Lexington, 17 Pick. 222 (1835) ; Fourth Parish v. Springfield, 18 Pick. 
 319 (1836) ; Fritz v. Brandon, 78 Pa. St. 312 (1875) ; Jackson v. McCall, 10 Johns. 377; 
 
 6 Am. Dec. 343 (1S13) ; Fitzhugh v. Croghan, 2 J. J. Marsh. 429; 19 Am. Dec. 139 
 (1829) ; Valentine v. Piper, 22 Pick. 85; 33 Am. Dec. 715 (1839) ; Brown v. McKinney, 
 
 (403) 
 
404 presumptive' evidence. [rule 86. 
 
 The undisturbed occupation for thirty-nine years raises a presumption of 
 a grant by the crown to A.'s father. 1 
 
 II. A fishing mill dam was erected more than one hundred and ten 
 years before 1861, in the River Derwent, in Cumberland (not being navi- 
 gable at that place), and was used for more than sixty years before 1861, 
 In the manner in which it was used in 1861. This raises a presumption 
 that all the upper proprietors whose rights were injuriously affected by 
 the dam had granted a right to erect it. 2 
 
 III. Title to a fishery was in S. in 1748; partition of his estate was 
 had, and it was adjudged in 1754 to " the representatives 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. 3 
 
 IV. 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 land was occupied under 
 this deed from 1778 to 1830. The existence of a deed from D. S. to J. A. 
 will be presumed. 4 
 
 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. 5 
 
 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. 6 
 
 VII. 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. 7 
 
 9 Watts, 565; 36 Am. Dec. 139 (1840) ; Berthelemy v. Johnson, 3 B. Mon. 90; 8S Am. 
 Deo. 179 (1842) ; Casey v. Inloes, 1 Gill. 430; 39 Am. Deo. 658 (1844) ; McCorry t>. King, 
 3 Humph. 287; 39 Am. Dec 165 (1842) ; Farrow v. Edmundson, 4 B. Mon. 665; 41 Am. 
 Dec. 250 (1844) ; Budd v. Brooke, 3 Gill (Md.), MS; 43 Am. Dec. 321 (3845) ; Gainings 
 v. Williams, 1 Ired. (L.) 487; 44 Am. Dec. 49 (1845) ; Hoey v. Finnan, 1 Pa. St. 295; 44 
 Am. Dec. 129 (1845) ; Jackson v. Moore, 13 Johns. 516 ; 7 Am. Dec. 379 (1816) ; Alex- 
 ander v. Walter, 8 Gill, 237; 50 Am. Dec. 6S8 (1849) ; Claflin v. Malone, 9 B. Mon. 4SG; 
 50 Am. Dec. 525 (1S49) ; Lenoir v. Rainey, 15 Ala. 667 (1849) ; McCall v. Doe, 17 Ala. 
 533 (1850) ; Sparks v. Rawls, 17 Ala. 211 (1850) ; Barnes v. Mobley, 21 Ala. 232 (1852) ; 
 Hobbs v. Bibb, 2 Stew. (Ala.) 54 (1829) ; Wilson v. Glenn, 6S Ala. 3S3 (1880) ; Ilantord 
 v. Fitch, 41 Conn. 486 (1874) ; Crow v. Marshall, 15 Mo. 499 (1852) ; Colvin v. Worlord, 
 20 Md. 358 (1863) ; Frantz v. Ireland, 66 Barb. 386 (1873). 
 
 1 Goodtitle v. Baldwin, 11 East, 488 ; see Devine v. Wilson, 10 Moore P. C. 502. 
 
 ' LeconQeld v. Lonsdale, L. R. 5 C. P. 657. 
 
 8 Carter p. Tinicum Fishing Co., 77 Pa. St. 310 (1875). 
 
 * Ryder d. Hathaway, 21 Pick. 298 (1838) ; White t\ Loring, 24 Pick. 319 (1837). 
 
 6 Jackson v. Murray, 7 Johns. 6 (1810) ; see Jackson v. Schoonmaker, 7 Jonns. 13 
 (1810) ; Jackson v. Sharp, 9 Johns. 165 (1812) ; Doe v. Campbell, 10 Johns. 475 (1S13). 
 
 6 Bullen v. Rannells, 2 N. H. 255 ; 9 Am. Dec. 55 (1820) ; Strickler v. Todd, 10 S. & 
 R. 63; 13 Am. Dec. 649 (1823). 
 
 i Mather v. Trinity Church, 3 S. & R. 509; 8 Am. Dec. 663 (1816). 
 
RULE 86. J PRESUMPTIONS FROM POSSESSION. 405 
 
 VIII. A person has had the possession and use of an incorporeal hera- 
 ditament for a long time. The law presumes a grant to him of such 
 right. 1 
 
 IX. A person has had the control of an easement for a long time. The 
 grant of the easement is presumed from the lapse of time. 2 
 
 X. No claim of dowers is asserted on land for thirty-five years. It is 
 presumed that none exists. 3 
 
 XI. A person has occupied certain land for forty years. This raises a 
 presumption of the ouster of a co-tenant, if he had any at the beginning. 4 
 
 XII. A road has been used for a long time. A dedication of it to the 
 public is presumed. 5 
 
 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 held 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. Stevens, 24 Pick. 
 106 ; 36 Am. Dec. 305 (1839) ; Mitchell v. Walker, 2 Aik. (Vt.) 266; 16 Am. Dec. 710 
 (1827). 
 
 2 Hanson v. McCue, 42 Oal. 303 (1871). Butthe English doctrine of apresumption 
 of a grant or contract to the owner of land having an unobstructed flow of light and 
 air to his windows for twenty years has not been adopted in the United States. 
 Pierre v. Fernald, 26 Me. 436 (1847) ; Parker v. Foote, 19 Wend. 309. 
 
 » Eoss v. Clore, 3 Dana, 189 (1835) ; and see Breckinridge v. Walters, 4 Dana, 627 
 (1836). 
 
 * Woolsey v. Morss, 19 Hun, 273 (1879). 
 
 « Rosser v. I3unn, 66 Ala. 89 (1880) ; New Orleans, etc., R. Co. v. Jones, 68 Ala. 48 
 (1880). So a right of way is presumed from lapse of time (Lawton v. Rivers, 2 Mc- 
 Cord (S. C.) 445 ; 13 Am. Dec. 741 (1823) ; State v. Bunker, 69 Me. 366 (1871) ; Com. v. 
 Low, 13 Pick. 409 (1826) ) and a right of water. Campbell v. Smith, 3 Halst. (N. J.) 
 140; 14Am. Dec. 400 (1825) ; Watkins v. Peck, 13 N. H. 360; 40 Am. Dec. 156 (1843). 
 
 6 10 S. & R. 383. 
 
406 PRESUMPTIVE EVIDENCE. [KULE 86. 
 
 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. 1 '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 he 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.' 2 
 Justice Sergeant said, in Foullc v. Brown:* 'We will not 
 encourage the laches and indolence of parties, but will pre- 
 sume, after a great lapse of time, 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 
 affairs of a past age, and often regardless of them. Papers 
 which our predecessors have carefully preserved are often 
 
 1 17 S. & K. 352, 353. 
 
 • Penrose v. Trelawney, cited in Vernon, 196. 
 
 8 2 Watts, 2U, 215. 
 
RULE 68.] 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 possession, it 
 would not be easy to determine.' 1 And said Black, C. J., 
 in Garrett v. Jackson: 2 ' 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 be 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. 
 Thompson,* 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. Heriby. 6 
 The necessity of relaxing the rules of evidence in matters 
 of ancient date was shown in Richards v. Elwell? 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 we 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 
 
 l Taylor v. Dougherty, 1 W. & S. 327. « 7 Casey, 174. 
 
 a 8 Harris, 335. * 12 Wright, 190. 
 
 8 6 Wright, 102-114. « 12 Wright, 61. 
 
408 PRESUMPTIVE EVIDENCE. [RULE 86. 
 
 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 be 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, 1 Hastings v. Wagner? Brock 
 v. Savage? The present case is stronger than any herein 
 cited. The title of Joseph Carter had its inception in 
 1796-97, 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. 
 When 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. 4 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 i W. & S. 171. = 10 Wright, S3. 
 
 2 7 Id. 215. 4 10 S. & E. 63 ; 13 Am. Deo. 649 (1823). 
 
RULE 8 6. J PRESUMPTIONS PEOM POSSESSION. 409 
 
 itself and without regard to length of time, because in this 
 case there has been an enjoyment by the plaintiffs, 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 was 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, without 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 affected 
 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 ; x 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 the party so enjoying it, and this is equal to a 
 right by prescription." 
 
 l See 6 Mass. 90. 
 
410 PRESUMPTIVE EVIDENCE. [RULE 86. 
 
 In University of Vermont v. Reynolds, 1 it was said: " In 
 cases of prescription the possession is conclusive as to the 
 right. 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. Wilkinson, 
 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, apply 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, 2 Jackson v. 
 Hurray* 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). s 7 jrf. 5. 
 
 * 10 Johns. 377 ; 6 Am. Deo. 343. * 3 Id. 375 ; 3 Am. Dec. 500. 
 
EULE 8 6. J PRESUMPTIONS FKOM POSSESSION. 411 
 
 these cases with the case of Doe ex dem. Fenwich v. Reed, 1 
 it may be inferred that 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 the 
 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 wa3 
 unlawful, but direct the jury to presume such grant, or 
 anything which will confirm the possession. But if the 
 original possession was consistent with 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, 2 it was said: " The measure 
 of the law is ex diuturnitate temporis omnia prcesumuntur 
 solemnitur esse acta. 3 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 JPiene v. Fernaldf 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 
 years, 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. 
 
 * 3 Vt. 231 ; 23 Am. Deo. 240 (1831). * 28 Me. 436 (1847). 
 
412 PRESUMPTIVE EVIDENCE. [RULE 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 Slrimpfler v. Roberts, 1 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 paid 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 (1S52). 
 
RULE 86.] PRESUMPTIONS EKOM POSSESSION. 413 
 
 found the judgment. ' No man,' says Mr. Justice Ser- 
 geant, 1 ' ought to be permitted 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. We 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 by 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 the 
 surveyor's fees, is an abandonment of the warrant. 2 And 
 even when the negligence is imputable to the officer, a 
 long delay will defeat the warrantee's title. 3 The title of 
 a warrantee is presumed to have been conveyed, where no 
 claim is made under it for a long time. 4 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. 6 
 Payment of taxes for twenty-one years is presumptive 
 evidence of a conveyance from the warrantee. 6 A survey, 
 unimpeached for twenty-one years, is conclusively believed 
 to have been regular; 7 and that even where there is an 
 unexecuted order of resurvey by the board of property. 8 
 In short, the courts of this State seem uniformly (and 
 
 1 2 Watts, 115. 6 17 ser. & E. 350. 
 
 2 2 Pa. St. 384. « 1 W. & S. 324. 
 
 8 4 Watts, 140. 1 2 Watts, 390 ; 1 W. & S. 68. 
 
 * 2 Binn. 468. » 7 Barr. 67. 
 
414 PRESUMPTIVE EVIDENCE. [EULE 86. 
 
 especially of late) to have refused to go back more than 
 twenty-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 ; 1 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 affairs, occur unless there was a 
 transmutation of title to, or an admission of an existing 
 adverse title in, the party in possession." 2 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. 3 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 i W. & S. 297. 
 
 » Story, J., in Eicard v. Williams, 7 Wheat. 109 (1822). 
 
 « Knight v. Coleman, 19 N. H. 118; 49 Am. Deo. 147 (1848). 
 
RULE 86.] PRESUMPTIONS FROM POSSESSION. 415 
 
 true owner. 1 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. 3 " 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 are 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 
 against an individual. In this State, from the very nature 
 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 will 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 arrest the 
 
 l Jaclrson v. Sharp, 9 Johns. 163 (1812) ; Bung v. Shonenberger, 2 Watts, 23; 26 
 Am. Deo. 95 (1833). 
 
 ' Rung v. Shonenberger, 2 Watts, 23 (1833). As to possession of written instru- 
 ments as evidence of title, see Hill v. Beach, 12 N. J. (Eq.) 31 (1868). 
 
 s Wilson v. Stoner, 9 S. & E. 664 (1822). 
 
416 PRESUMPTIVE EVIDENCE. [RULE 86. 
 
 general attention. In Mather v. The Ministers of Trinity 
 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- 
 pancy 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.] RESUMPTIONS FROM POSSESSION. 417 
 
 against an individual. We 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. 1 Like a 
 grant a statute may be 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. 
 
 KULE 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 oi a university which held the lands in question. The trustees 
 never had power to convey by deed. The presumption can not arise. 2 
 
 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. 
 ha,d been revoked. 3 
 
 In McOarty 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 
 
 l Lady Stafford v. Llewellin, Skin. 78; Att'yGen. v. Ewelime Hospital, 17 Beav. 
 390 ; Lopez v. Andrews, 3Man. & E. 339, note ; McCarty v. MoCarty, 2 Strobh. (L.) 6 ; 
 47 Am. Deo. 5S5 (1S47). 
 
 * University of Vermont v. Reynold, 3 Vt. 234 (1831). 
 
 • Id. 
 
 » 2 Strobh. (L.) 6; 47 Am. Dec. 585 (1847). 
 
 27 
 
418 PRESUMPTIVE EVIDENCE. [RULE 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 Boyeey. 
 Owens, 1 ' 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 discharging its obligation 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 prcesumuntur rile 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, 
 
 l 1 Hill, 10. 
 
RULE 88.] PRESUMPTIONS FROM POSSESSION. 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." 
 
 RULE 88. — When a person is in possession of property 
 and is shown entitled to the beneficial ownership 
 thereof, the presumption is that every instrument has 
 heen executed, and every thing has been done to 
 render his title legal. 1 
 
 Illustrations. 
 
 I. A person has .possession of a deed. This raises a presumption of 
 its legal delivery to him. 2 
 
 II. A partition of land is presumed from possession and lapse of 
 time. 3 
 
 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. 4 
 
 IV. A. enters into possession of land under a conveyance from B. 
 A.'s title is presumed good till the contrary is shown. 5 
 
 V. A voluntary division of property is made by heirs in 1830. In 1860 
 an administration will be presumed. 6 
 
 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. 7 
 
 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. 9 
 
 1 So recitals in deeds are presumptive evidence of pedigree (Little v. Palister, 4 
 Me. 209 (1326 ;) and of the deeds referred to after a lapse of time. Fuller v. Saxton, 
 20 N. J. (L.) 61 (1843) ; Den v. Gaston, 25 N. J. (L.) 615 (1866). 
 
 2 Roberts v. Swearingen, 8 Neb. 363 (1879) ; Fairlee ©.Fair lee, 21 N.J. (L.) 284 
 (1848) ; Berry v. Anderson, 22 Ind. 36 (1864). 
 
 s Goodman v. Winter, 64 Ala. 410 (1879) ; Baker v. Prewitt, 64 Ala. 551 (1879). 
 4 O'Brien v. Henry, 6 Ala. 787 (1S44). 
 6 Pitney v. Leonard, 1 Paige Ch. 461 (1829). 
 
 • Desverges v. Desverges, 31 Ga. 753 (1861) ; Austin «. Bailey, 37 Vt. 219 (1864). 
 ' Winkloy v. Kaime, 32 N. n. 266 (1855) ; Coxe v. Deringer, 78 Pa. St. 271 (1875). 
 « Simsonu. Eckstein, 22 Cal. 5S0 (1863). 
 
 1 roraanu. Crutcher, 2 A. K.Marsh. 70 (1S19) ; Delabigarre v. Second Minicipality, 
 3 La. Ann. 230 (1848). 
 
420 PRESUMPTIVE EVIDENCE. [RULE 89. 
 
 RULE 89. — And the possession of personal property 
 raises a presnmption of title in, and ownership of, the 
 property by the possessor. 1 
 
 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. 2 
 
 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. 4 
 
 IV. In C.'s hands are a number of bonds. The presumption is that he 
 owns them. 6 
 
 V. A. has possession of a note. This presumes ownership in A. of 
 that note. 6 
 
 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. 7 
 
 VII. A. ships property by a carrier. The presumption is that A. owns 
 the property. 8 
 
 In case I., the Alabama cases on this topic were reviewed 
 at length. " In this as in most States of this Union," said 
 
 1 Entriken v. Brown, 30 Pa. St. 364 (1859) ; Phelps v. Cutler, 4 Gray, 137 (1855) ; Park 
 ii. HarriBon, 8 Humph. 413 (1847); Burdgo v. Sjaith, 14 Cal. 380 (1859); Goodwins. 
 Garr, 8 Oal. 615 (1857) ; nunt v. Utter, 15 Ind. 318 (1860) ; Evans v. Board of Trustees, 
 15 Ind. 319 (1860) ; Robinoe v. Doe, 6 Blackl. 85 (1S41) ; Millay v. Butts, 35 Me. 139 
 (1853);Linscottt>. Trask, 35 Me. 150 (1852). "No principle is more fully settled by 
 the uniform weight of authority than that possession is prima Jade 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 the 
 primitive proof of title and the natural foundation of right." Id. 
 
 ' HcArthurr. Carrie, 32 Ala. 75 (1850). 
 
 8 Stacy v. Graham, 3 Duer, 444 (1854) ; Bradley v. The New World, 2 Cal. 373 (1852). 
 
 * Fish v. Skut, 21 Barb. 333 (1856). 
 
 B Wickes v. Adirondack Co., 4 Thomp & C. 250 (1874). 
 
 « Bonnell v. Thompson, 13 Ala. 440 (1848) ; Bush v. Seaton, 4 Ind. 522 (1853) ; Kim- 
 ball v. Whitney, 15 Ind. 280 (18C0) ; Squier v. Stockton, 5 La. Ann. 120 (1S50). 
 
 ' Cnmberledge v. Cole, 44 Iowa, 181 (1876). 
 
 « Price v. Powell, 3 N. Y. 322 (1850). 
 
RULE 89.] PRESUMPTIONS FROM POSSESSION. 421 
 
 the court, " there is a growing disposition to fix a 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. 1 The 
 nature of this presumption, and the manner of drawing 
 it, are not, in the mother country, and in the several States, 
 the same. 2 The precise question we are considering does 
 not appear to have been before considered in this court. 
 Kindred questions have been under review. In Rhodes v. 
 Turner and Wife, 3 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 would 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 Barnett 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 court, 
 deciding that it would presume, after so great a lapse of 
 
 1 See 2 Story's Equity, see. 10286. 
 
 * See, on this Bubjeet, Oowen & Hill's notes to Phil. Ev. (Edition by Van Oott), 
 Part I., pp. 536, 456, 457,464, 485 to 500,504-505; vol. 5, same edition, 267; Sims v. 
 Aughtery, 4 Strob. Eq. 103. 
 
 s 21 Ala. 210. 
 
 * 23 Ala. 463. 
 
422 PRESUMPTIVE EVIDENCE. [RULE 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 ground on which the rule here suggested 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 Gantt's Admr. v. Phillips, 1 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 appointment had been 
 
 1 23 Ala. 275. 
 
EULE 89.] PEESUMPTIONS FBOM POSSESSION. 423 
 
 lost or destroyed, then the jury might presume her appoint- 
 ment and qualification. The latter part 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. Inffarveyv. 
 Thrope, 1 a similar decision was made. 2 It will be observed, 
 that in the case cited from our own reports of Barnett v. 
 Torrance, the presumption drawn by the court in favor of 
 the regularity and validity of the decree was conclusive, 
 not a mere prima 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 he should have settled the estate he is forever dis- 
 charged, on a mere presumption of law. Suppose, after 
 that time an administrator de 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 
 
 l 28 Ala. 250. • Lay v. Lawson, 23 Ala. 377. s Supra, 
 
424 PRESUMPTIVE EVIDENCE. [RULE 89. 
 
 for them ? In the cases of Gantt v. Phillips and Harvey 
 v. T/irope, the question, whether the presumption was con- 
 clusive or not, was not presented by the record, and was 
 not discussed. We do not regard them as authorities 
 against the principle announced in Rhodes v. Turner and 
 Wife and Barnett v. Torrance. 1 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 
 language 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 purpose 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 
 
 i Supra. a i strob. Eq. 103. 
 
RULE 89. J PRESUMPTIONS FROM POSSESSION. 425 
 
 presumptions, which prevail alike in courts of law and 
 equity, and which are eminently subservient to the quieting 
 of titles, and the prevention of litigation arising upon 
 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 
 years 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.' 1 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 
 jury ; a presumption they may draw, but there are no rules 
 which govern them in such cases. Such was the instruction 
 of the Circuit Court in the case of Oantt v. Phillips, and 
 
 i See, also, the case of Williamson ». Williamson, 1 Johns. Oh. 488, 494-493. 
 
426 PRESUMPTIVE EVIDENCE. [RULE 89. 
 
 in the case of Harvey v. Thrope. 1 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 with the analogies of the law, and 
 with the theory of jury trials. Juries are authorized to 
 pronounce 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 
 parties. 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 89.] PRESUMPTIONS FROM POSSESSION. 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 prima facie presumption 
 is raised, whenever there is satisfactory proof of twenty 
 years' uninterrupted, adverse enjoyment and possession. 
 Speaking of this presumption, Mr. Starkie says (edition 
 of 1826, 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 Vandich v. Van Buren. 1 
 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. See on this subject Cow.& Hill's Notes to Phil. Ev. (ed. by 
 Van Cott), Part 1, pp. 485, et eeq.; 2 Wend. Black. 266, note 10; Beck on Presump- 
 tions, 144; Smithpeter v. Ison, 4 Rich. Law, 203; 3 Bouv. Bacon, 621; Jackson v. 
 McCall, 10 Johns. 377; 1 Greenlf. Ev., sec. 46; Warren v. Webb, 2 Strange, 1129; Rex 
 v. Carpenter, 2 Show. 47; Trotter v. Harris, 2 Tounge & Jervis, 285; Beall v. Lynn, 9 
 Harr. v. Johns. 336, 353, 361; Ld Pelham v. Pickingill, 1 T. R. 381; Doe v. Ireland, 11 
 East, 280, 284; Goodtitle v. Baldwin, Id. 288; Penwarden v. Ching, 1 Moody & 
 Mai. 400; Rex v. Long Buckley, 7 East, 45; Mayor of Kingston v. Herwer, Cowp. 
 102, 110 ; Stodder v. Powell, 1 Stew. 187 ; 1 Greenl. Cruise, 415, 416 ; Rustard v. Gates, 
 4 Dana, 430 ; McPherson v. Cunlitf , 11 S. & R. 422, 432. 
 
428 PRESUMPTIVE EVIDENCE. [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 
 prima facie presumption becomes conclusive. It results 
 from this, that the charge of the circuit court was errone- 
 ous." 
 
 In case H. 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 plaintiff made & prima 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. Hawks, 1 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). 
 
EULE 89. J PRESUMPTIONS FEOM POSSESSION. 429 
 
 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 1 Swift's Dig. 273, 766. 
 
PART V. 
 
 PEESUMPTIONS IN OEIMINAL CASES. 
 
 (431) 
 
CHAPTBE XIX. 
 
 THE PRESUMPTIONS IN FAVOR OF INNOCENCE. 
 
 RULE 90. — The law presumes the innocence of a per- 
 son charged with crime until the contrary is proved 
 beyond a reasonable doubt. 1 
 
 Illustrations. 
 
 I. A man and woman live and cohabit together. The presumption is 
 that they are married. 2 
 
 1 People v. Thayer, 1 Park. C. 0. 695 (1825) ; State v. rugate, 27 Mo. 635 
 (1858) ; State v. Mosier, 25 Conn. 40 (1856) ; Wasden v. State, 18 Ga. 264 (1855). So a 
 forfeiture will not be presumed. State v. Atkinson, 24 Vt. 448 (1852). 
 
 " THREE FAMOUS THINGS 1ST LAW." 
 " The presumption of innocence. It is greatly to be regretted that the so-called 
 presumption of innocence in favor of the prisoner at the bar is a pretense, 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 prison eras 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. Practi- 
 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. 
 Nay, so far from being merely inoperative, it is not hazardous to say that in the trial 
 the presumption 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 reason 
 is plain. The whole course of criminal procedure, from inception to close, is de- 
 signed to shut out presumptions of innocence and invite presumptions of guilt. 
 The secrecy of complaint-making at the magistrate's office, the mysterious inquisi- 
 tion of the grand jury room, the publicity 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 many steps and strokes to blacken the 
 accused before ho is permitted to open his mouth with a syllable of evidence to 
 break the force of the damaging array of circumstances. To suppose that the pre- 
 sumption 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 he is presumed innocent, why 
 is he manacled? why is he put in jail? why is he let out only on bail? why, when he 
 is put on trial, is he put in the dock? why does he not have place with the by-stand- 
 ers,who are simply presumed innocent? The 'presumption,' in the presence of 
 
 ! Post v. Post, 70 HI. 484 (1873) ; Cape v. Pearce, 7 Gill (Md.), 263 (1848). 
 
 28 ( 433 ) 
 
434 PRESUMPTIVE EVIDENCE. [RULE 90. 
 
 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 presump- 
 tion is that the relation was that of concubinage, and not of marriage. 1 
 
 such things, ia a contradiction of terms. How can a person be presumed innocent 
 who is presumably guilty? The fact that he is restrained of his liberty presumes 
 ruilt. There is no other construction to be placed on the restraint. Human 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 
 suspected violators of law be so modified as to allow human nature to be thus gen- 
 erous? Can it be so modified? The 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 proceedings. 
 " 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 beyond 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 doubtful whether they stop to 
 think, or, stopping, form any but a very doubtful opinion. Should it be a matter 
 of opinion at all? Should it not be a matter of conviction? Should not every ono 
 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 areas beyond all question? The learning 
 
 of the books on this subject is vast. It begins with the Bible — that is to say, the 
 book writers 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' (Deut. xvii: 4). This is 
 said to be the amplification of Moses as definer of 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 persuasion 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 eays 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 approaoh nearer a solu- 
 tion, and resembles a definition once heard in a charge to a jury. The judge who 
 gave it is admittedly one of the ablest and clearest-headed jurists who eversatupon 
 the bench. He is the man whom Ruf us Choate called 'one of the ablest minds of 
 the State.' As near as memory serves, his words were as follows: 'Just what a 
 reasonable doubt is, gentlemen, it is not quite easy to say; but you -are practical 
 men, and I instruct you that you should be satisfied of the defendant's guiltto 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 Jury 
 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 plays 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). 
 
RULE 90.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 435 
 
 III. M. was indicted for stealing a keg of beer; all that was proved 
 was that M. had taken a keg of beer from a store. This is insufficient to 
 raise a presumption that M. intended to steal it. 1 
 
 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. 2 
 
 V. A. marries B., having a husband, C, living. It being proved that 
 C. subsequently died, the presumption is that A. and B. were married 
 again after his death, if they are proved to have continued cohabitation. 3 
 
 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 
 together and to be recognized as husband and wife. Held, 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 her husband; the law required that to render a marriage valid the 
 chapel in which it was solemnized should be licensed. Meld, that the 
 presumption was that the chapel in this case was duly licensed. 6 
 
 harmless sort of puff ball, tossed hither and thither by cunning lawyers to mystify 
 the case and the hearer, and, for about the same reason, the trier comes to treat it 
 as not of much account. How often does the juror give it serious thought that the 
 plaintiff is weighted with a burden which the defendant is not — that having asserted 
 a thing he should show it to be fact by a preponderance of the evidence? Many 
 reason that assertion must be true, otherwise it would not have been asserted. 
 Some regard ipse dixit demonstration. They look upon denial as despair. To them, 
 he who denies seems to be in a fix. They never get the better of the first impres- 
 sion of the first word. But the old Roman 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 what he would assert, hold his 
 peace or hold forth at his peril. Then there would be less holding forth. There 
 is too much holding forth. Too much there is of heedless, wanton allegation and 
 accusation of a legal sort and of all sorts. Bights are rated too low. Reputation 
 is reckoned too cheap. It is painful to relate that the law holds reputation in 
 very cheap estimation. Criminal procedure everywhere is a standing invitation 
 to attack it at the public expense, and civil procedure affords no adequate remedy 
 when 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 he 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 has spent thrice the money the law gives' him to right (he 
 wrong he has suffered." From Ten Years a Police Court Judge. New York: 
 Funk & Wingalls, 188*. 
 
 1 Mason v. State, 32 Ark. 239 (1877). 
 
 s Glanchard v. Lambert, 43 Iowa, 228 (1S76). 
 
 8 Blanchard v. Lambert, 43 Iowa, 228 (1876) ; Yat )s v. Houston, 3 Tex. 433 (1818) ; 
 Carroll v. Carroll, 20 Tex. 731 (1838) ; Fenton v. Reed, 4 Johns. (N. Y.) 61; Boss v. 
 Clark, 8 Taige (N. Y.) 573; Jackson t>. Claw, 18 Johns. (N. Y.) 347. 
 
 * Wilkinson v. Payne, 4 T. It. 468 (1701). 
 
 « Sichel v. iambert, 15 C. B. (x. s.) 781 (1864). 
 
436 PRESUMPTIVE EVIDENCE. [RULE 90. 
 
 VTII. 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. 1 
 
 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. 3 
 
 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. 4 
 
 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. 5 
 
 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. 6 
 
 XIV. 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.' 
 
 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 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). 
 
 a Carson v. Central R. Co., 35 Cal. 325 (1868). 
 
 s Todd v. Myers, 40 Cal. 355 (1870). 
 
 4 Krng v. Hawkins, 10 Bast, 211 (1809). 
 
 6 Hewlett v. Hewlett, 4 Edw. (N. Y.) 7 (1839). 
 
 Lavender v. Hudgens, 32 Ark. 704 (1878). 
 
 ' Savieru. Chipman, 1 Mich. 116 (1848). 
 
KTJLE 90. J PRESUMPTIONS IN FAVOR OF INNOCENCE. 437 
 
 In case II., the presumption is that the parties were not 
 married, because, if they were, they were guilty of violating 
 the express words of a penal statute. 
 
 In case III., " 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 was properly and legally performed, seeing that if it 
 were otherwise the officiating clergyman would have been 
 guilty of felony." 1 
 
 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 LordEllenborough 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 Keg v. Mainwaring, 1 Dears. & B. lto, a similar question arose upon an in- 
 dictment for bigamy. "The presence of the registrar at the marriage," said Wight. 
 man, J., " the fact of the ceremony taking place, and the entry in the registrar's 
 book, of which a copy was produced at the trial, seemed to me at the time to be 
 circumstances which afforded, and I now think, aided as they are 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 be legally celebrated. If it were 
 not such a place, all those who took part in the proceedings would be criminally 
 liable for doing so." 
 
438 PRESUMPTIVE EVIDENCE. [RULE 90. 
 
 to make the putting onboard 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- 
 ing 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 
 a3 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 plaintiff 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. 1 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. 2 
 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. 3 
 
 Other instances and applications of the presumption of 
 innocence maybe 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 ; 4 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). 
 
 2 Home v. State, 1 Kan. 42 (1862). 
 
 • Bradish v. Bliss, 35 Vt. 326 (1802). 
 Commonwealth v. Butler, 1 Alien, (Mass.) 4 (1861) ante, p. 279. 
 
RULE 90.] PRESUMPTIONS IN EAVOK OF INNOCENCE. 439 
 
 presumed incapable of crime ; but this latter presumption 
 may be shown, in a particular case, to be incorrect. 1 From 
 the fact that two oaths have been made by the same person 
 on the same subject, both of which can .not be true, no pre- 
 sumption arises that either of them was willfully or corruptly 
 made. 2 There is no presumption of law that every one 
 present at a riot, and not actually aiding in its suppression, 
 is guilty unless he proves his non-interference; 3 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. 4 And it has been held that where a 
 statute gives one 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. 6 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. 6 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. 7 
 
 Sab-Rule 1. — Fraud is never presumed, unless such circum- 
 stances are shown as willlegally justify such an inference. 
 
 Illustrations. 
 
 I. 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 a sale ; that the 
 presumption was that every man acted honestly and without fraud, and 
 when fraud was alleged the proof must not only be sufficient to establish 
 
 1 State v. Goin, 9 Humph. (Tenn.) 175 (1848) ante, p. 279. 
 ! Schulter v. Merchants' Mutual Ins. Co., 62 Mo. 239 (1876). 
 
 • State v. McBride, 19 Mo. 239 (1863). 
 
 • State «. Kompf , 26 Mo. 429 (1S58). 
 
 6 Templeton v. People, 27 Mich. 601 (1873). 
 
 • Bruce v. Atkinson, 22 Ark. SG3 (1860). 
 Gailher v. Myrick, 9 lid. 118 (1856). 
 
440 PRESUMPTIVE EVIDENCE. [KULE 90. 
 
 an innocent act, but to overcome the presumption of honesty." Held, 
 proper. 1 
 
 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. 2 
 
 III. 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, 
 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. 
 
 TV. 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 
 hands, except where he failed to make annual reports 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. 5 
 
 In United States v. McLean, 6 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 penalty 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 
 which have been adopted, as well with reference to the pro- 
 
 1 Hatclm. Bayley, 12 Cu6h. 27 (1853). 
 
 * Tatee v. Pelton, 48 Vt. 182 (1876) ; and see Hibbard v. Mills, 46 Vt. 243 (1873). 
 " Carroll t». Quynn, 13 Md. 379 (1858). 
 
 * Price v. Gover, 40 Md. 102 (1874). 
 
 6 Gee p. Hicks, Rich. (5. 0.) Eq. Oas. 5 (1831). 
 « 9 Pet. (U. S.) 682 (1835). 
 
EULE 90. J PRESUMPTIONS IN FAVOK 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. * * * Bat 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 be 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 does 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 property unless the offense 
 shall be established beyond reasonable doubt. This i3 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, 1 " 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 time 
 during which the fraud has been successfully concealed and 
 practiced is rather an aggravation of the offense, 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 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 
 
 1 Prevostr. Gratz, 6 Wheat. (U. S.) 481 (1821) ; 1 Pet. C. 0. 364 (1816). 
 
442 PRESUMPTIVE EVIDENCE. [itTJLE 90. 
 
 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 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, who 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 2 . — And good character is presumed. 1 
 
 In Harrington v. State 2 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 does 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. 3 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 adopt a 
 charge prepared for a particular case, and give it, as a rule 
 
 1 People*. Johnson, 61 Cal. 142 (1883). 
 » 19 01310 St. 264(1869). 
 s 6 Cush. 324. 
 
BULB 90.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 443 
 
 of law, to guide juries in weighing evidence in other evidence 
 dissimilar in that circumstance. The distinction taken in 
 Webster's Case, as to the weight that may be given to proof 
 of good 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 the 
 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 effect 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 charged. The force of this pre- 
 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 latter 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 the jury, that "in a plain case, a good character 
 would not help the prisoner but in a doubtful case, he had a 
 right to have it cast in the scales, and weighed in his behalf." 2 
 The ti'ue rule was said to be, ' that the testimony is to go to 
 the jury, and be considered by them in connection with all 
 the other facts and circumstances ; and if they believe the 
 
 1 Cancemi v. People, 16 N. T. 501. 
 ' Slate v. Henry, 5 Jones (N. 00, t 
 
444 PRESUMPTIVE EVIDENCE. [RULE 90; 
 
 accused to be guilty, they must so find notwithstanding his 
 good character.' " 
 
 The presumption of innocence of one crime may convict 
 a person of another and a greater one. Gibson v. State 1 
 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 then 
 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 (1860). 
 
KULE 91. J PRESUMPTIONS IN FAVOR OF INNOCENCE. 445 
 
 one of innocence, which he can not complain of because he 
 subsequently committed a crime, in relation to which the 
 presumption in the former case operates against him." 
 
 KTJIiE 91. — A prima facie case does not take away from 
 a defendant a presumption of innocence. 1 
 
 The jury are not to convict unless the evidence is such as 
 to lead them to believe that the prisoner is guilty. They 
 may be 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 improper 
 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. In a criminal prosecution the jury were instructed that when the 
 government 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 
 
 II. 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. 3 
 
 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 fire the onus was cast upon her to get rid of the suspicion thus cast 
 upon her. Held, error. 4 
 
 In easel, it was said: "We are apprehensive that the 
 distinction between a prima facie case, which is sufficient 
 to call upon the defendant to go into his defense and 
 
 l Commonwealth v. Dana, 2 Mete. (Mass.) 329 (1841). 
 
 ' Commonwealth v. Kimball, 24 Pick. (Mass.) 373 (1837). 
 
 s State v. Plye, 26 Me. 312 (1846) ; State v. Tibbets, 35 Me. 81 (1852). 
 
 * People v. Bodine, 1 Den. (N. Y.) 281 (1845). 
 
446 PRESUMPTIVE EVIDENCE. [EULE 91. 
 
 encounter such prima facie case, and the changing the bur- 
 den of proof, was not sufficiently considered and observed 
 in this case. Making out & prima facie case does not neces- 
 sarily or usually change the burden of proof. A prima 
 facie 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 take 
 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 prima facie 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 proceedings, beyond 
 a reasonable doubt. The burthen of proof does 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 
 
RULE 92.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 447 
 
 evidence to negative an averment which the prosecution is 
 bound to prove will not warrant the jury in finding that 
 indictment proved. 1 " In a criminal case the establishment 
 of a. 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 plaintiff is not 
 required to prove beyond 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 prima facie case so established entitles him 
 to recover unless it is destroyed by proof from the other 
 party. But in a criminal 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 facie case thus 
 made out by the State. A circumstance, aided by that 
 presumption, may so far rebut or impair the prima facie 
 case as to render a conviction upon it improper." 2 
 
 RULE 92 . — Where there are conflicting' presumptions, 
 the presumption of innocence will prevail against the 
 presumption of the continuance of life (A), the pre- 
 sumption of the continuance of things generally (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). 
 
 " Nothing can be clearer than this," says Mr. Justice 
 
 i Commonwealths. Hardiman, 9 Gray (Mass.) 361 (1857). 
 
 2 Ogletree v. State, 28 Ala. 693 (1856) ; United States v. Douglass, 2 Blatchf. (C S.) 
 207 (1851). 
 
448 PRESUMPTIVE EVIDENCE. [RULE 92. 
 
 Heath in an old case, 1 " a presumption may be rebutted by 
 a contrary and stronger presumption." 
 
 Illustrations. 
 
 I. Mary B. married W., who afterwards enlisted and went on a 
 foreign service and was never heard of afterwards ; twelve months after 
 his departure she married B. Held, that the issue of B. would be pre- 
 sumed legitimate. 2 
 
 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. 3 
 
 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- 
 riage. 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." 4 
 
 1 Jayne v. Price, 5 Taunt. 326 (1814). 
 
 ' Kins »• Inhabitants of Gloucestershire, 2 Barn. & Aid. 386 (1819) ; Lockhart v. 
 White, 18 Tex. 102 (1856) ; Sharp v. Johnson, 22 Ark. 79 (1860) ; Greensborough v. 
 Underbill, 12 Vt. 601 (1839) ; Cameron v. State, 11 Ala. 546 ; 48 Am. Deo. Ill (1818); 
 Chapmau v. Cooper, 5 Rich. (L.) 452 (1832); Yates v. Houston, 3 Tex. 442 (1848). 
 
 2 Breiden v. Pait, 12 S. & R. (Pit.) 430 (1825). 
 
 * The case which is often cited in connection with King v. Inhabitants of Glou- 
 cestershire, is King j). Inhabitants of Harborne, 2 Ad. & E. 540 (1835). There it 
 appeared that one Ann Smith had, on April 11th, 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- 
 sumption was that the n:-st wife was living at the time of the second marriage. The 
 decision in this case was evidently based on the very short time which transpired 
 between the time when the first wife was shown to be alive and the date of the sec- 
 ond marriage. And see Lapsley v. Grierson, 1 ILL. Cas. 500 (184S). In Yates i>. 
 Houston, 3 Tex. 433 (1848), where four years had elapsed since the former wife had 
 
EULE 92. J PRESUMPTIONS IN FAVOE OF INNOCENCE. 449 
 
 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 
 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 years before the second marriage, or for sixteen 
 years afterwards was alive and was her lawful husband when 
 she married the second time." 1 
 
 B. 
 
 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. 2 
 
 II. A. threatens to kill B.; sometime after B. kills A. There is no 
 presumption that A.'s Intention continued to that time. 3 
 
 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 that her death would be presumed to validate a subse- 
 quent marriage. And see Lockhart v. White, 18 Tex. 102 (1S56).- In Wilkie 
 v. Collins, 48 Miss. 496 (1873,) a husband left his home in Mississippi on October 30th, 
 1859, and went to Louisiana on business, where he was last heard from by letter to 
 his wife, November 30th, 1859, announcing that he was then sick in bed, and would 
 return as soon as he was able to travel. He was of habitual delicate health, and his 
 domestic relations had always been most agreeable. It was the belief of bis family 
 that he was dead, and on December 22d, 1861, his wife married again. It was held 
 that the husband would be presumed to have been dead at that time. And see 
 Chapman v. Cooper, 5 Rich. (S. C) L. 452 (1852). 
 1 Kelly v. Drew, 12 Allen, 107 (1S66). 
 
 * Klein v. Laudman, 29 Mo. 259 (1860). 
 
 • State v. Brown, 64 Mo. 367 (1877). 
 
 4 Patterson v. State, 21 Ala. 571 (1852). 
 
 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 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 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 HI. 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 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. Meld, 
 correct. 1 
 
 II. B. a.nd 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 the removal of a barrier between par- 
 ties who have been prevented from contracting it by a legal 
 
 1 Oarotti v. State, 42 Miss. 334 (1868). 
 a Floyd v. Calvert, 63 Mies. 46 (1876). 
 
RULE 92. J PRESUMPTIONS IN FAVOR OF INNOCENCE. 451 
 
 obstacle, no such presumption will arise where 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 be presumed to have continued therein 
 until some change of intention and wishes is affirmatively 
 shown. 1 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. In 
 Wilkinson v. Payne, 2 an infant contracted a void marriage 
 and lived with his wife until her death, which occurred only 
 three weeks after he attained a legal age to marry, 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 arises from cohabitation; M. andY. were 
 proved to have lived together and cohabited; Y. afterwards married 
 S. The presumption that Y. did not commit bigamy prevails over the 
 presumption that M. and Y. were married. 3 
 
 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. * 
 
 D. 
 
 I. W. was indicted for the seduction of E. under a statute pun- 
 ishing the seduction of " any unmarried female of previous chaste char- 
 acter." The previous chaste character of E. will not be presumed. 
 
 1 Floyd v. Calvert, 53 Miss. 46 (1876). 
 
 * 4 T. E. 468. 
 
 8 Clayton v. WardeH, 4 N. T. 230 (1850) ; Case v. Case, 17 Cal. 698 (1861). 
 
 * Armstrongs. Ho'lges, 2 B. Hon. (Ky.) 70 (1841). 
 
 6 Westw. State, lWis.209 (1833). But see State v. Wells, 48 Iowa, 671 (1878). In 
 Slocumc. r-eople, 90 111. 281 (lS78),the prosecution was under a statute punishing 
 the enticing away from home lor tlie purpose oi prostitution, of any unmarried 
 woman of chaste life and conversation. In deciding the case the Supreme Court 
 said: "The presumption ol law is that her previous life and conversation were 
 chaste, and the onus was upon the defendant to show otherwise." But the case 
 
452 PRESUMPTIVE EVIDENCE. [RULE 92. 
 
 " 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 
 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 are the shield of the accused, not the sword 
 of the prosecutor. * * * The previous 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 ehastity of the female which the statute is designed to 
 protect. The pre-existence of that chastity is the sine qua 
 non 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 
 
 shows 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 she testified on the trial that she never had intercourse with any man but the 
 defendant. The expression of Ihc court was therefore unnecessary, as there was 
 proof enough to support the prosecution. 
 
RULE 92. J PRESUMPTIONS IN FAVOR OF INNOCENCE. 453 
 
 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 presumed. 
 But when the State accuses one of its citizens with the 
 violation of the chastity of another of its citizens by seduc- 
 tion, 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 
 charged. One act of illicit intercourse affords no presump- 
 tion 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 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 affords 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 
 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. 1 Ignorance of the law excuses 
 no oae 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. 2 
 
 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. 8 
 
 1 Mayor of Baltimore, v. Norman, 4 Md. 352 (1853). 
 
 J Whitton v. State, 87 Miss. 379 (1S59). 
 
 • Com. v. Bagley, 7 Peck. 279 (1828). But see Cutlers. State, 36 N. J. (L.) 125 (1873), 
 where in a similar case, tlie conviction was set aside on the ground that the intent 
 was wanting. 
 
454 PRESUMPTIVE EVIDENCE. [iiULE 92. 
 
 IV. A. is indicted for suffering gaming in his house.. It appears that 
 A. does not know it is unlawful to permit gaming inhis house. His igno- 
 rance of the law does not excuse A. 1 
 
 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 
 
 VI. 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. 3 
 
 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 will- 
 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 Inrt. 30 (1864). 
 
 ' Queen v. Mayor of Tewkesbury, L. E. 3 Q. B. 
 
 8 State v. Welch, 73 Mo. 284 (1880). 
 
 i 43 Ala. 297 (1869.) 
 
RULE 9 2. J 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. ' x 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 presumed to 
 know the law. This properly understood is true, but 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 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 
 
 1 Broom's Legal Maxims, top page 205 
 
456 PKESUMPTIVE EVIDENCE. [RULE 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 VI. 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 different one for the 
 blacks. Under our present constitution no law making 
 such a distinction would be of any validity. Wharton's 
 Crim. Law, 1 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 acquital 
 either total or partial.' Bat 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. 2 However this may be, the section of our 
 
 1 Sect. 88, p. 1794. 
 
 2 Bishop, 4 South. Law Key. (n. 8.) 58. 
 
KULE 92. J PRESUMPTIONS IN FAVOK OF INNOCENCE. 457 
 
 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 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 
 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 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 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." 
 
 F. 
 
 I. A. is charged with a crime. The presumption is that A. was sane 
 when he committed it, and if he wishes to be excused on the ground of 
 non-responsibility, he must prove insanity. 1 
 
 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, 68 Miss. 2G9 (1879). 
 
458 PRESUMPTIVE EVIDENCE. [kULE 92. 
 
 general and without exception, the presumption would be 
 that A. was insane — in other words that 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 must give 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. la 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 x and New Jersey, 2 though at one time it 
 
 1 State v. Danby, 1 Houst. (Del.) Or. Cas. 175; State v. Pratt, Id. 269; State v, 
 Boice, Id. 355 ; State v. Draper, Id. 5:!1 ; State v. Thomas, Id. 611. 
 
 2 State v. Spencer, 1 Zab. (N. J.) 201. 
 
RULE 92.] PRESUMPTIONS IX FAVOR OP INNOCENCE. 459 
 
 ruled in Alabama 2 and Missouri. 2 The second view pre- 
 vails in the courts of Alabama, 3 Arkansas, 4 California, 5 
 Iowa, 6 Kentucky, 7 Maine, 8 Massachusetts, 9 Missouri, 10 North 
 Carolina, 11 Ohio, 12 Pennsylvania, 13 Texas, 14 Virginia. 16 And 
 the third view is maintained in the courts of Illinois, 16 In- 
 diana, 17 Kansas, 18 Michigan, 19 Mississippi, 20 Nebraska, 21 New 
 Hampshire , M New York w and Tennessee. 24 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 was insane a short 
 time before the commission of a criminal act there is no 
 presumption that he was insane at the time of the act. 26 
 
 l Brinyea v. State, 5 Ala. 211. 
 
 * 8tate v. Hutinr, 21 Mo. 464. 
 
 3 McAllister v. State, 17 Ala. 434; State v. Marler, 2 Ala. 43 ; State v. Boswell, 63 
 Ala. 307. 
 
 * McKenzie v. State, 26 Ark. 334. 
 
 6 Peoples;. Coffman, 24 Cal. 233; People v. Wilson, 49 Cal. 14; People v. Messers- 
 mith, 57 Cal. 675 ; People v. McDowell, 47 Cal. 134 ; People v. Wreden, 12 Ky. 682. 
 
 * State v. Feltcr, 32 Iowa 49. 
 
 ' Graham v. Com., 16 B. Mon. (Ky.) 587; Smith v. Com., 1 Day. (Ky.) 224; Kriel v. 
 Com., 5 Bush. (Ky.) 362. 
 
 * State v. Lawrence, 57 Me. 574. 
 
 9 Com. v. Eogers, 7 Mete. (Mass.) 500; Com. v. Eddy, 7 Gray (Mass.), 583; Com. v. 
 Heath, 11 Id. 303. 
 
 1° State v. Klinger, 43 Mo. 127; State v. Smith, 53 Mo. 267; State v. Redemeier, 71 
 Mo. 173 ; State v. Erb, 74 Mo. 199 ; State v. Baber, 74 Mo. 292. 
 
 11 State v. Payne, 86 N. C. 309. 
 
 12 Loeffnerr. State, 10 Ohio St. 598; Bond v. State, 23 Ohio St. 349; Bergin v. State, 
 33 Ohio St. 116. 
 
 V Ortweint). Com., 76 Pa. St. 423; Lynch v. Com., 77 Id. 205; Myers v. Com., 83 Id. 
 141; Pannell v. Com., 86 Id. 268; Sayres v. Com., 83 Id. 301. 
 
 1' Webb v. State, 9 Tex. App. 490; King v. State, Id. 553; Johnson v. State, 10 Id. 
 577; Clark v. State, 8 Id. 350; Carter v. State, 12 Id. 500; 
 
 i= Boswell's Case, 20 Gratt. (Va.) 860; Baccigalupo's Case, 33 Id. 807; Dejarnette v. 
 Com., 75 Va. 867. 
 
 1° Fisher's Case, 23 111.293; overruled in Hopps«. People, 31 111. 385; Chase v. 
 People, 40 111. 352. 
 
 I 1 Polk v. State, 19 Ind. 170; Stevens v. People, 31 Ind. 485; Guetlg v. State, 66 
 Ind. 94. 
 
 l» State v. Crawford, 11 Kan. 32. 
 
 l» People v. Garbutt, 17 Mich. 9; People v. Finley, 38 Id. 482. 
 
 so Cunningham v. State, 56 Miss. 272. 
 
 21 Wright v. People, 4 Neb. 408. 
 
 " State v. Bartlett, 43 N. H. 224; State v. Jones, 50 N. H. 369. 
 
 " 3 O'Connell v. People, 87 N. Y. 380. 
 
 » Dove v. State, 3 Heisk. (Tenn.) 348. 
 
 » Peoples. Smith, 67 Cal. 130 (1880). 
 
460 FKESU31PTIVE EVIDENCE. [RULE 94. 
 
 EULE 93. — The presumption of innocence may toe 
 strengthened — as toy the relation of the parties 
 
 Illustration. 
 
 I. A. is indicted for the murder of B. The fact that B. is A.'s wife 
 strengthens the presumption of his innocence. 1 
 
 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 the husband that he killed 
 his wife, threats to kill her, and evidence that he maintained 
 criminal relations with other women, or had a former wife 
 liviDg, 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. 
 
 Illustration. 
 
 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, E. will be presumed guilty. 2 
 
 1 State v. WatMna, 9 Conn. 47 (1831) ; State v. Green, 35 Id. 203 (1S68). 
 * Ex parte Ryan, 44 Cal. 555 (1872). 
 
EULE 95. J PRESUMPTIONS IN FAVOR OF INNOCENCE. 461 
 
 RULE 95. Where a person does an act which is un- 
 lawful unless he possesses a certain qualification, the 
 hurden is on the prosecution to show that he does 
 not possess the requisite qualification (B), unless the 
 proof is peculiarly in his possession (B), and that it 
 may involve him in proving his innocence does not 
 change the rule (G). 
 
 Illustrations. 
 A. 
 
 I. The indictment charged H. and E. with living together as husband 
 and wife without having been married. The burden was on the State to 
 show that they were not married. 1 
 
 II. A statute prohibited the sale of liquor to a slave without the con- 
 sent of his owner. In a prosecution thereon, the burden is on the State 
 to show that the owner did not consent to the sale. 2 
 
 III. M. is indicted for selling liquor without a license. The burden 
 was on M. to show the possession of a license. 9 
 
 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. 4 
 
 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. 5 
 
 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. 6 
 
 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.' 
 
 1 Hopper v. State, 19 Ark. 143 (1857). 
 
 2 State v. Evans, 5 Jones (N. C.) L. 250 (1850) ; State v. Miller, 7 Ired. (N. C.) 
 L. 275 (1847). 
 
 a State v. Morrison, 3 Dev. (ST. C.) L. 299 (1S31). 
 
 * State v. Woodly, 2 Jones (N. C.) L. 276 (1855). 
 
 • Rex v. Rogers, 2 Camp. 654 (1811). 
 
 6 United States v. Galacar, 1 Sprague (U. S.), 545 (1852). 
 
 7 Call v. Allen, 1 Allen (Mass.), 137 (1861). 
 
462 PRESUMPTIVE EVIDENCE. [RULE 95. 
 
 The general rule, both in civil and criminal causes, is 
 that the burden of prpof is on the party holding the affirma- 
 tive, but there are some exceptions in which the proposi- 
 tion, though negative in its terms, 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 cun 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, 
 orthelike. " Here, the party, if licensed," it was said in 
 case I., " can immediately show it without the least incon- 
 venience, whereas if proof of the negative were required, the 
 inconvenience would be very great. * * * But 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 
 
RULE 9 5. J PRESUMPTIONS IN FAVOR OF INNOCENCE. 463 
 
 prove circumstances to show that they were not really mar- 
 ried." In Commonwealth v. Thurlow, 1 the defendant was 
 indicted for selling liquor without a license. The court 
 held that as the only authority from whom a license could 
 be obtained was 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 rale 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." 2 
 
 In case II. it was said : "It is manifest that the owner, 
 employer, 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 
 
 i 24 Pick. (Mass.) 374 (1837). 
 
 a See, also, Commonwealth v. Kimball, 7 Mete. (Mass.) 304 (1843) ; Timson «• 
 Moultoii,3 Cash. (Mass.) 269 (1849) ; WUson v. Melvin, IS Gray (Mass.), 73 (1859). 
 
464 PRESUMPTIVE EVIDENCE. [liULE 95. 
 
 rules it was said came in conflict in such cases, the rule that 
 all the facts necessary to constitute the offense 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 affect 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 with 
 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 
 
 1 Titus i>. Kimbro, 8 Tex. 210 (1852). 
 
RULE 95.] PRESUMPTIONS IN FAVOR OP INNOCENCE. 465 
 
 I. A statute prescribes a penalty for practicing medicine without a 
 license. In a prosecution thereon the burden is on the defendant to show 
 a license. 1 
 
 II. A statute prohibits a person from having game in his possession 
 unless he possesses certain qualifications The burden is on a person 
 prosecuted under this act to show these qualifications. 2 
 
 III. A statute prohibited importations of goods from England except 
 in neutral vessels ; in a prosecution thereon the burden is on the de- 
 fendant to show the neutrality of the vessel." 
 
 IV. An indictment is for retailing liquors without a license; the bur- 
 den of proving a license is on the defendant. 1 
 
 V. A statute prohibits the permitting of more than five slaves to as- 
 semble without the consent of the owners ; it being proved that more 
 thau five slaves assembled on the defendant's lot, the burden Is on him 
 to prove the consent of the owners. 6 
 
 VI. B. is charged with selling diseased meat without making the same 
 known to the buyer; it is proved that B. sold diseased meat. The bur- 
 den is on B. to show that he disclosed its condition to the buyer. 6 
 
 VII. A statute punishes the injuring of any building "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. 8 
 
 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 
 
 l Apothecaries' Co. v. Bentley, Ey. & M. 159; Sheldon v. Clark, 1 Johns. (N. T.) 
 513 (1806). 
 
 a King v. Turner, 5 M. & S. 206 ; Eer v. Stone, 1 East, 639 ; Spieres ti. Parker, 1 T.. 
 E. 144 ; Jelfs v. Ballard, 1 B. & P. 468 ; Smyth v. Jeffries, 5 Price, 258 (1821). 
 
 8 United States v. Hayward, 2 Gall. (U. S.) 485 (1815). 
 
 * Geningw. State, 1 McCord (S. C), 573 (1822) ; State v. Morrison, 3 Dev. (JT. C.) 
 299 (1831) ; Ilaskill v. Commonwealth, 3 B. Hon. (Ky.) 342 (1843) ; Shearer v. State, 7 
 Blackf. (Ind.) 99 (1644) ; State v. Crowell, 25 Me. 171 (1845) ; Harridan's. Case, Eos- 
 coe Cr. Ey. 56 ; State v. Edwards, 60 Mo. 490 (1875). 
 
 » Commonwealths. Conner, 5 Leigh (Va.), 718 (1S34). 
 « Seibrightu. State, 2 W. Va. 591 (1867). 
 ' State v. Whittier, 21 Me. 341 (1842). 
 » Wheat v. State, 6 Mo. 455 (1840). 
 
 • State v. Atkinson, 6 Jones (N. C), 65 (1868). 
 
 30 
 
466 PRESUMPTIVE EVIDENCE. [RULE 95. 
 
 In case II., Lord Ellenborough said: "The question is 
 upon whom the onus probandi 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 are, I think, about ten different heads 
 of qualification 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 give 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. 1 
 
 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. 2 
 
 " 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 
 
 l Caldwell v. State, 5 Tex. 19 (1849). 
 
 •State v. Arnold, 13 Ired. (N. C) L. 134 (1851). 
 
KULE 96.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 467 
 
 within his own knowledge, and also the persons by whom it 
 can be directly proved. 
 
 RULE 96. — A person is presumed to intend the natural 
 and legal consequences of his 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 intention of giving a preference to 
 such creditor. 1 
 
 II. 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. 2 
 
 III. 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. 3 
 
 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. 4 
 
 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 intention to 
 pay it when it became due is irrelevant. 6 
 
 VI. B. forges C.'s name to a check on the bank of D. C. has no 
 account there. The presumption is that B. intended to defraud C. 6 
 
 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 presumptioti is 
 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, and it 
 
 1 Ecker v. McAllister, 46 Md. 290 (1876) ; and Bee Gardner ». Lewie, 7 Gall. (U. S.) 
 377 (1843). 
 
 2 Evans v. Evans, 41 Cal. 103 (1871) ; Astley v. Astley, 1 Hagg. Eoe. 720 (1828) 
 » King v. Dixon, 3 M. & S. 12 (1814). 
 
 * E. v. Fanning, K. & It. 207 (1811). 
 «. R. o. Hill, 2 Moody, 30 (1838). 
 
 • R. v. Nash, 2 Den. C. O. 498 (1852). 
 ' R. v. Sheppard, R. & R. 160 (1809). 
 
468 PRESUMPTIVE EVIDENCE. [eULE 96. 
 
 appeared that its execution was such as to render its spuriousness easily 
 detectable by the officers ot 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. 1 
 
 IX. A. sets Are 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 officer should be punishable. 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. 1 
 
 In case HI. 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. 
 
 " 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 be an intent to defraud in that 
 case, although no person could be defrauded." 
 
 1 R. v. Mazagora, E. & E. 291 (1815). 
 
 2 People v. Orcutt, 1 Park. 0. 0. 262 (1851). 
 * State «. Heaton, 77 N. 0. 504 (1877). 
 
RULE 97.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 469 
 
 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 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 i3 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 practi- 
 cally defeated, as there is in most cases no other way of 
 sustaining the intent than by establishing the unlawfulness 
 of the act." 
 
 RULE 97. — Where an act is criminal per se a criminal 
 intent is presumed from the commission of the act. 1 
 
 Illustrations . 
 
 I. N. is proved to have been stabbed with a dirk knife by T., from 
 which wound he instantly 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 presumption is that S. intended to kill C. 3 
 
 In Commonwealth v. Webster,* Chief Justice Shaw said : 
 " The ordinary feelings, passions, and propensities under 
 which parties act are facts, known by observation and 
 
 1 People v. March, 6 Cal. 543 (1856) ; Murphy v. Com. 23 Grat. 960 (1873) ; McCone 
 v. High, 24 Iowa, 336 (1863) ; Murphy v. State, 37 Ala. 142 (1861) ; Carroll v. State, 23 
 Ala. 28 (1853). 
 
 a Com. v. York, 9 Mete. 93 (1845) ; Murphy v. People, 37 111. 447 (1865) ; Riggs » 
 State, 30 Miss. 636 (1856) ; State v. Bertrand, 3 Ore. 61 (1868) ; State v . Holme, 54 
 Mo. 153 (1873) ; Conner v. State, 4 Yerg. 137 (1833). 
 
 8 State v. Smith, 2 Strobh. 77 (1847). 
 
 * 5 Cush. 316 (1850). 
 
470 PRESUMPTIVE 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 
 
RULE 97.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 471 
 
 to intend the death which is the probable and ordinary 
 consequence of such an act." l 
 
 In case II. it was said: " If one were to fire a loaded gun 
 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. * * * But in 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 poignai-d 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 we judge, renders the intent more 
 doubtful and the inference less, strong. So if one beat a full- 
 o-rown man with his fist, and death ensues, we would ordi- 
 narily feel far more doubt that death was intended than if it 
 
 l Agnew, 0. J., in Com. v. Drum, 68 Pa. St. 17 (1868). 
 
472 PRESUMPTIVE EVIDENCE. [RULE 97. 
 
 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 
 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 cpuld 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 considered by thi^ jury in determining 
 upon this question of intent." 
 
 Sub-Rule 1. — 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 specific 
 intent. 
 
 Illustrations. 
 
 I. E. is charged with assaulting with intent to murder one E. It is 
 
RULE 9 7. J PRESUMPTIONS IN FAVOR OF INNOCENCE. 473 
 
 proved that R. fired a loaded pistol at E. There is no presumption that 
 R. intended to murder E. 1 
 
 II. A statute makes a willful, deliberate and premeditated killing mur- 
 der in the first degree. B. kills C. There is no presumption that the 
 killing was deliberate and premeditated. 2 
 
 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 be 
 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 offense 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 3 and with malice.* 
 So from proof of a design to injure another, malice is pre- 
 sumed. 6 Where a statute makes a willful, deliberate, and 
 premeditated killing 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. 6 But from the simple act of killing, the law 
 presumes murder in the second degree. 7 When a homicide 
 
 1 Roberts v People, 19 Mich. 401 (1870) ; Mayhew v. People, 10 Id. 212 (1862). 
 
 ' Com.*). Drum, 68 Pa. St. 9 (1876) ; Stale v. Mitchell, 64 Mo. 191 (1876) ; State v. 
 Foster, 61 Id. 649 (1876) ; State v. Lane, 64 Id. 319 (1876) ; Hamby v. State, S6 
 Tex. S23 (1872). 
 
 3 Oliver v. State, 17 Ala. 6S7 (1850). 
 
 * Murphy v. State, 37 Ala. 142 (1861) ; Carroll v. State, 23 Ala. 28 (1853). 
 
 ' McCord v. High, 24 Iowa, 336 (1868). 
 
 « State v. Foster, 61 Mo. 619 (1876) ; Commonwealth v. Dunn, 68 Pa. St. 9 (1876) ; 
 State v. Mitchell, 64 Mo. 191 (1876) ; State v. i-ane, 64 Mo. 319 (1876). 
 
 i State v. Gassert, 65 Mo. 352 (1877) ; State v. Evans, 65 Mo. 674 (1877) ; State v. 
 Turner, Wright (0.) 20 (1831). 
 
474 PRESUMPTIVE EVIDENCE. [RULE 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. 1 
 
 "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 
 and 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 intended it: 
 A. did this act; 
 Therefore he intended it. " 
 
 "Butthe 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 produced 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 (1878). 
 
RULE 97.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 475 
 
 pose 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 may prevent in- 
 numerable 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 than the willful 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 form 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, is 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. 
 
476 PRESUMPTIVE EVIDENCE. [RULE 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 LeveWs 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 
 enemy whom 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 
 at B., 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 O, 
 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 him 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 what 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.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 477 
 
 are we to sweep out of existence the entire category of muli- 
 cious crimes, and say that there is no way in which a malicious 
 crime can be 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 was 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 petilio 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 the 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 does. 
 If he is trying to steal a tame fowl, then he is indictable 
 for an attempt at larceny. If he kills a man negligently 
 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 fits absolutely even two cases. We must put all the 
 facts together, and examine whether 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 evidence 
 is in, by inference from all the circumstances of the case. 
 
478 PRESUMPTIVE EVIDENCE. [RULE 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." 1 
 
 RULE 98. — Possession, knowledge, or motive may over- 
 throw the presumption of innocence, and raise in its 
 place a presumption of guilt. 
 
 " If A. brings an action of trover against B. for the con- 
 version 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." 2 A presumption is a probable inference which 
 common sense draws from circumstances usually occurring 
 in such cases. 3 There is a wide difference between pre- 
 sumptions of law and presumptions of fact. 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, Crim. Law Mag. 1881. 
 * Finch v. Alston, 2 II. P. (Pa.) 83 (1832). 
 » State v. Tibbert, 36 Me. 81. 
 
RULE 9 8. J PRESUMPTIONS IN FAVOR OF INNOCENCE. 479 
 
 fact arc 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. 1 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 prima facie evidence of 
 guilty possession, and if unexplained either 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 circumstances surrounding the case." 2 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, 3 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." 4 
 
 It is held in Illinois that it is error to instruct the jury 
 that the possession of stolen property soon after it is stolen 
 is of itself prima facie evidence that it was stolen by the 
 party in whose possession it is thus found, and throws the 
 burden on him of showing that his possession was honest. 5 
 Everything connected with the possession must be consid- 
 
 1 Balaam v. State, 17 Ala. 451 (1850). 
 
 ' State v. Gray, 37 Mo. 463 (1866) ; State v. Brain, 34 Mo. 537 (1864). 
 
 ' State v. Graves, 72 N. C. 482 (1875). 
 
 « State v. Wolff, 15 Mo. 108 (1851); State v. Floyd, 15 Mo. 354 (1852) ; Tackier v. 
 Chapman, 20 Mo. 249 (1855) ; State v. Creson, 38 Mo. 372 (1866) ; State t>. Williams, 54 
 Mo. 170 (1873) ; State v. Robbing, 65 Mo. 443 (1877). 
 
 » Conkwright v. People, 35 III. 204 (1864). 
 
480 PRESUMPTIVE EVIDENCE. [RULE 98. 
 
 ered, such as its proximity, whether it was concealed, 
 
 whether the party admitted or denied the possession, 
 
 whether other persons had access to the place where 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. 1 
 
 II. A. was prosecuted for suffering intoxicating liquor to be drunk 
 in his grocery. It was proved that certain liquor sold by A. was drank 
 in his store. Meld, 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 writer, 3 " 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 other 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 Hudson v. State, 9 Yerg. (Term.) 408 (1836). 
 
 » Casey v. State, 6 Mo. 646 (1840). > Stark. Ev. 50, Bl. 
 
EULE 99.] PRESUMPTIONS IN FAVOE OF INNOCENCE. 481 
 
 between motives and conduct, intentions and acts, which 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. Warren, 1 is an instructive 
 case. W. was sued for an assault on B. The only witness 
 at the trial was a daughter of B.,who testified that on the 
 occasion complained of, W. 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 complained 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 difficulty 
 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, they could not presume that the letter had been 
 senttoW.'s daughter or was offensive or insulting, but, if this 
 were so, W. 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 99. — A person on trial for one crime can not 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. 2 
 
 " Suppose the general character of one charged with 
 crime is infamous and degraded to the last degree — that his 
 
 1 8 Jones (N. C.) L. 191 (1860). " Ellis v. Day, 4 Conn. 96 (182X),. 
 
 31 
 
482 PRESUMPTIVE EVIDENCE. |_ I!ULB 99. 
 
 life has been nothing but a succession of crimes of the most 
 atrocious and revolting sort — does not the knowledge of 
 all this inevitably carry the mind in the direction of a con- 
 clusion that he has added the particular 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." 1 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 oecasion 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 English modes of conducting 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 1668, 
 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." 3 But the 
 
 1 State v. Lapage,67 N. H. 300 (1876). 
 
 2 Steph. Ev., note VI., p 195. 
 ' 6 How. St. Tr. 936. 
 
RULE 99.] PRESUMPTIONS IN FAVOR OF INNOCENCE . 483 
 
 beginning of the eighteenth century witnessed the end of 
 this system, and the American courts have never known it. 
 
 Illustrations. 
 
 I. The question is whether A. committed a crime. The fact that he for- 
 merly committed another crime of the same sort, and had a tendency to 
 commit crime, is irrelevant. 1 
 
 II. L. was indicted for the murder of J., in perpetrating a rape upon 
 her. Proof that L. committed a rape on R., some time previous to the 
 alleged crime was admitted. Held, error. 2 
 
 III. S. was indicted for murdering his wife by poisoning, Proof that 
 he was criminally intimate with one A., whose husband died with the 
 same symptoms as his own wife, was inadmissible. 3 
 
 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 forging the indorsement of V. to a promissory 
 note; the question was whether he honestly believed he had authority to 
 sign V.'s name. The fact that he had acknowledged to having made a 
 similar unauthorized use of the name of G. was inadmissible. 5 
 
 VI. K. was indicted for stealing a bag of flour with P. ; P. having 
 turned State's evidence, testified that K. proposed the theft to him, and 
 at the same time proposed to forge notes on dead men's estates and steal 
 negro children. The admission in evidence of the latter proposals was 
 erroneous. 6 
 
 VII. B. was indicted for larceny of bank-bills in snatching them from 
 the hand of R. The fact th-it B., the next day, enticed R. into an alley, 
 knocked him down, beat him and robbed him of other bills, is irrel- 
 evant.' 
 
 VIII. C. was indicted for larceny in stealing a horse. The fact that 
 C, the day previous, stole a sum of money is irrelevant. 8 
 
 IX. R. was indicted for performing an abortion on B. The proof that 
 R. three years previous, produced an abortion on W., is inadmissible. 9 
 
 i Kex». Cole, 1 Phil. Ev. 608, citing Steph. Dig. Ev. 18. 
 
 * State v, Lapage, 57 N. H. 245 (1876) ; State v. Walters, 45 Iowa, 389 (1877) ; People 
 V. Bowen,49Cal.654 (1875). 
 
 ' Shaffner v. Commonwealth, 72 Pa. St. 60 (1872). 
 
 * State v. Beaton, 15 N. H. 174 (1844). 
 6 People v. Corbin, 5GN. Y. 363 (1874). 
 
 * Kinchelowu. State, 5 Humph. (Tenn.) 9 (1844). 
 
 » Bonsall v. State, 35 Ind. 460 (1S71) ; People t>. Barnes, 48 Cal. 651 (1874). 
 
 » Barton v. State, 18 Ohio, 221 (1849). 
 
 » Eosenweig v. People, 63 Barb. (N. Y.) 634 (1872). 
 
484 PRESUMPTIVE EVIDENCE. [RULE 99. 
 
 X. S. was charged with the murder of an Illegitimate child of his 
 daughter, of which he was the father. Proof that S. had previously 
 committed a rape on this daughter was inadmissible. 1 
 
 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 saidin 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 responsibility which rests upon the 
 jury, by showing that he is not worthy of painstaking and 
 care, and, in short, that the trial is what 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, 62 
 HI. 209 (1871). 
 
 2 State v. Shuford, 69 K. 0. 487 (1873). • 
 
BULB 99. J PRESUMPTIONS IN FAVOE OF INNOCENCE. 485 
 
 the 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 the mind of the actor, 
 linking them together for some purpose he intended to 
 accomplish, or it must be necessary to identify the person 
 of the actor by a connection which shows that he who com- 
 mitted the one must have committed the other. Without 
 this obvious connection, it is not only unjust to the prisoner 
 to compel him to acquit himself of two offenses 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 against V., but does not legit- 
 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 the 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 VIIT. 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 got 
 
486 PRESUMPTIVE EVIDENCE. [EULE 99. 
 
 possession of the property, yet we 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, where a person was 
 indicted for burglariously entering a building, evidence that 
 there was found on him a key that would open another build- 
 ing, is inadmissible. 1 A person indicted for having stolen 
 a watch from one person, can not be shown to have previ- 
 ously stolen a cloak from another person. 2 A person indicted 
 for murder can not be shown to have previously set fire to 
 the house of the deceased. 8 A person indicted for poison- 
 ing A. can not be shown to have poisoned B. several months 
 previously. 4 A person charged with an assault to rob can 
 not be shown to have committed other assaults. 5 A per- 
 son charged with arson can not be shown to have been pre- 
 viously imprisoned as a pickpocket. 6 
 
 1 Commonwealth v. Wilson, 2 Cush. (Mass.) 590 (1849). 
 
 2 Walker's case, 1 Leigh (Va.), 574 (!82!)). 
 
 s Stone v. State, 4 Hump. (Tenn.) 27 (1843) ; and see Brock v. State, 26 Ala. 104 
 (1855). 
 
 * Fairar«. State, 2 Ohio St. 54 (1853). 
 
 6 Cobles. State, 31 Ohio St. 100 (1876). 
 
 • Oesure v. State, 1 Tex. App. 19 (1876). 
 
RULE 100.] PRESUMPTIONS IN FAVOR OF INNOCENCE. 487 
 
 I 
 
 KULE 100. — But to prove knowledge or intent (A) or 
 motive (B), a collateral crime may be shown. 
 
 Illustrations. 
 
 I. A. Is Indicted for uttering a bank-note, knowing It to be forged. 
 Evidence that A. had uttered other forged notes of the same or different 
 kind, or that he had others in his possession, is admissible. 
 
 II. A. is charged with receiving two pieces of silk from B, knowing 
 them to have been stolen by him from C.j the facts that A. received from 
 B. many other articles stolen by him from C. in the course of several 
 months, and that 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. 1 
 
 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, on two separate occasions, to obtain 
 money from C. andD., respectively, by a similar assertion asto the same 
 or a similar ring, and that on another occasion on the same day he ob- 
 tained a sum of money from E. by 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 ring. 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. 3 
 
 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 person 
 of C, but desisted because they believed he had nothing on him to rob, 
 was admissible. 5 
 
 Case IV. 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 6ee Tarborongh v. State, 41 Ala. 105 (1868); 
 Baker v. State, 4 Ark. 58 (1642). 
 
 2 Reg. v. Francis, L. E. 2 O. C. E. 128 ; Eeg. v. Cooper, 1 Q. B. D. 19. 
 
 8 State v. Walters, 45 Iowa, 389 (1877) ; Williams v. State, 8 Hump. (Tenn.) 530 
 (1848). 
 
 * State v. Neagle, 65 Me. 468 (1876). 
 
 * State n. Oowell, 12 Nev. 337. 
 
488 PRESUMPTIVE EVIDENCE. [RULE 100. 
 
 trial, evidence was admitted that the prisoner had previ- 
 ously assaulted, in the same way, both Mina 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 can not 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. 1 
 
 I. T. was indicted for the murder of W., a female. Evidence that T. 
 had previously maintained criminal relations with W., is admissible. 2 
 
 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. 3 
 
 III. C. is indicted for murder; to show a motive for the crime, it is 
 proper to show the existence of a secret criminal organization to which 
 C. belonged. 1 
 
 1 Coleman v. People, 55 N. T. 81 (1873). 
 
 ! Turner v. Commonwealth, 86 Ta. St. 54 (1878). 
 
 8 Dunn v. State, 2 Ark. 227 (1339). 
 
 * Carroll v. Commonwealth, 84 Pa. St. 107 (1S77). 
 
RULE 101. J PRESUMPTIONS IX FAVOR OF INNOCENCE. 489 
 
 IV. C. is indicted for the murder of H. The fact that C. had previously 
 employed H. to murder one P. is relevant. 1 
 
 V. W. was indicted for the murder of his wife. Proof of an adulterous 
 Intercourse between W. and another woman is admissible. 2 
 
 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 he being detected, the prisoner 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." 
 
 RtnLE 101. A separate crime from that charged may be 
 shown where it is necessary to prove that the crime 
 charged was not accidental. 8 
 
 Illustrations. 
 
 I. A. is accused of setting Are 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 fire oc- 
 curred, and that after each of these fires A. received a payment from a 
 different insurance office, are relevant.* 
 
 II. A. is employed to pay the wages of B.'s laborers, and it is A.'s 
 duty to make entries in a book showing the amounts 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. 5 
 
 III. The question is, whether the administration of poison to A. by 
 Z., his wife, in September, 1818, was accidental or intentional. The facts 
 that B-, C. and D. (A.'s three sons) had the same poison administered to 
 them in December, 1848, March, 1849, and April, 1849, and thatthe meals 
 
 i Rex v. Cleves, 4 Car. & P. 221 (1830). 
 
 * State «. Watkina, 9 Conn. 47. 
 
 » State v. Patza, 3 La. Ann. 512 (1S48). 
 
 1 Rcgina v. Gray, 4 Fost. & F. 1102 ; Steph. Ev. 23. 
 
 s Regina v. Richaidson, 2 Fost. & F. 343 ; Steph. Ev. 23. 
 
490 PRESUMPTIVE 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. 1 
 
 IV. V. is indicted for shooting at P. with intent to kill. The defense 
 is that it was accidental. Proof that V. at another time shot at P. is ad- 
 missible. 2 
 
 V. E. is indicted for murdering her infant by suffocating it in bed. 
 Proof that other children of R. have died young is admissible. 3 
 
 VI. I), 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. 4 
 
 In cases like the above it might well happen that a man 
 might 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 be very improbable. 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. 8 
 
 KtTLE 102. — A separate crime from that charged may 
 be proved where it forms part of the res gestae. 
 
 Illustrations. 
 
 I. A. is indicted for arson in setting fire to a rick, the property of B. 
 Evidence of A.'s presence and conduct at fires of other ricks on the same 
 night, the property of C. and D. is admissible. 6 
 
 i Rex v. Gearing, 18 L. J., M. 0. 215; Steph. Ev. 24; Rex v. Cotton, 12 Cox 0. C, 
 400; Rex v. Ganier, 3 Fost. & F. 681. 
 
 2 Rex v. Voke, Russ. & Ry. 531 (1823). 
 8 Regina ». Roden, 12 Cox C. C. 6;0 (1874). 
 4 Regina v. Dossett, 2 Car. & E. 306. 
 6 State d. Lapage, 67 M. II. 215 (1ST6). 
 Regma v. Taylor, 6 Cox C. C. 138. 
 
RULE 102. J PRESUMPTIONS IN FAVOR OF INNOCENCE. 491 
 
 II. S. Is indicted for killing T. Proof that M. was killed at the same 
 time, and showing the manner of M.'s injuries, is admissible. 1 
 
 " It frequently happens that, as the evidence of circum- 
 stances 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 that 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 the main facts adduced in evidence 
 that they can not be departed from with propriety, and 
 there is no reason why the criminality of such intimate and 
 connected circumstances should exclude 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." 2 
 
 There is another class of cases in which evidence of crim- 
 inal acts other than the one charged is permitted to be 
 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 
 
 1 Commonwealth v. Stnrtevant, 117 Mass. 122 (1875). 
 a Walter's Case, 1 Leigh (Va.), 557 (1&29). 
 
492 PRESUMPTIVE EVIDENCE. [RULE 102. 
 
 of indecent familiarity other than the one in question, 1 and 
 even proof of the actual commission of the crime at 
 another time. 2 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 (1852) ; State v. Crowley, 13 Ala. 172 (1848). 
 
 * Thayer v. Thayer, 101 Mass. 113 (1869), overruling Commonwealth v. Thrasher, 
 11 Gray (Mass.), 450; Commonwealth v. Lahey, 14 Gray (Mass.), 91 (1859) ; Common- 
 wealth v. Merriam, 14 Pick (Mass.) 618 (1833) ; Commonwealth v. Horton, 2 Gray 
 (Mass.), 351 (1854). 
 
CHAPTEE XX. 
 
 THE PRESUMPTIONS IN DISFAVOK OF INNOCENCE. 
 
 RDTjK 103. — Where bo 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 may arise. 1 
 
 InLake v. People 2 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 unfrequently lead to the crime. If a case should 
 arise where it was 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 who can say 
 there is no motive? Who can fathom the mind of the 
 accused and ascertain that there is no hidden desire 
 
 1 Somerville v. State, 6 Tex. (App.) 433 (1879) ; Smith v. State, 8 Tex. (App.) 38 
 (1860); Yauke ». State, 51 Wis. 406 (1881); Overstreet v. State, 46 Ala. 30 (1871); 
 Flanagan v. State, 46 Ala. 703 (1871) ; Kelsoe v. State, 47 Ala. 573 (1872). " The exist- 
 ence or want of motive to commit the crime alleged, is always a legitimate sulject 
 of inquiry. In cases depending upon circumstantial evidence, it is sometimes of 
 vital importance. But it is never indispensable to a conviction that a motive for 
 the commission of the crime should appear," People v. Robinson, 1 Park. 0. O. 
 649 (1854). 
 
 « 1 Park. 0. 0. 539 (1854). 
 
 ( 493 ) 
 
494 PRESUMPTIVE EVIDENCE. [RULE 103. 
 
 of vengeance, no envy or avaricious passion to be grati- 
 fied? There is no rule of law which determines what 
 is an adequate motive, even where it is necessary to show 
 one. One man will kill another to obtain $1,000, another 
 may do the same for a tenth or even a hundreth 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 
 cei-tain 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 
 poiutof uncontrollable passion, or in other words, the killing 
 point. But it is contended by the defense that even admit- 
 ting a sufficient motive as to the woman, there could not be 
 any occasion for destroying 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 principle 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. J PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 495 
 
 prisoner expressed it, ' as he had commenced the job he 
 thoughthe would finish the breed.' " 
 
 And that the prisoner has committed other crimes may be 
 shown to evidence his motive. 1 " Motive is a minor or aux- 
 iliary fact from which, when established in connection with 
 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 with 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 be 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 (C), accomplished or attempted 
 
 or able to be accomplished by the perpetration of the crime 
 
 charged. 
 
 Illustrations. 
 
 A. 
 
 I. A poor Italian boy is killed by a man in the streets. The motive is 
 to sell his body to a medical college. 2 
 
 1 People v. Wood, 3 Park. 681 (1858). 
 ! R. v. Bishop, 2 Lond. Leg. Obs. 39. 
 
496 PRESUMPTIVE EVIDENCE. [itULE 103. 
 
 II. A. enters a house in the night and kills B., the owner. A.'s motive 
 is to possess himself of a sum of money which B. always keeps in a bag 
 under his pillow. 
 
 III. An old lady possessed of some money goes to board with B., who 
 keeps a boarding-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. 1 
 
 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 
 bo frustrated by its being discovered by the employer. Here is a motive 
 in P. to kill his employer. 2 
 
 V. B. was a debtor of D. who held a bond and mortgage on his house. 
 B. was in bad circumstances. B. killed D. and seized the papers. Here 
 the motive is apparent. 8 
 
 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. 4 
 
 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 
 P. 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. 5 
 
 VIII. H. is indicted for murdering his wife. That by a will of her 
 father H. was entitled after her death to a part of the father's estate is 
 relevant on the question of motive. 6 
 
 IX. A. is accused of having set Are to his own house. It is proved 
 that shortly before the 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 be 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 dug out of his jaws and sold to a dentist for three 
 dollars. 
 
 i R. v. Burdock, Best on Prea., sect. 196. 
 
 2 R. v. Patch, Wills Ciro. Ev. 230. 
 
 3 State v. Robinson, Burr. Cir. Ev. 288. A similar motive is found in Com. v. 
 Webster, tried for tho murder of Prof. Parkman, Bemis' Report, 565 ; R. v. Harrison, 
 12 How. St. Tr. 833 (1602). 
 
 * R. v. Blandy, 8 How. St. Tr. 1118 (1752) ; Margaret Gottfried's Case, i Leg. Obs. 
 101; R. v. Stansfield, 11 How. St. Tr. 1371. 
 
 6 Strangwayes' Case, 5 Leg. Obs. 90. 
 
 « People n. Hendrickson, 1 Park. C 0. 422 (1853). 
 
 7 Best Ev., sect. 453; and see State v. West, 1 Houst. Cr. Cas. 382. 
 
ETJLE 103. J PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 497 
 
 Case II. is the common one of the burglar 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 who 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 that 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 wife if 
 she lived — in either case whether the supposed motive was 
 resentment or avarice it was properly received. It was 
 competent to show whether the prisoner 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 affection 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 proportion 
 to the depravity of the mind would a motive be trifling 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, according to their own estimate of the enormity 
 
498 PRESUMPTIVE EVIDENCE. [RULE 10& 
 
 of crime and a virtuous mind would find no motive sufficient 
 to justify the felonious taking of human life." 
 
 I. K. poisons his wife. It is proved that while his wife was alive he 
 made offers of marriage to one Nancy H., who objects on the ground 
 that he is married. He endeavors to get a divorce from his wife, but 
 fails. The motive is apparent. 1 
 
 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. 2 
 
 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. 3 
 
 IV. J. is indicted for poisoning Ms 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. 4 
 
 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. 5 
 
 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. 6 
 
 VII. P. 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 10th. F. starts back, 
 
 i People v. Kelser, 3 Wheel. Cr. Cas. 40 (1817) ; Margaret Gottfried's Case, 4 Leg. 
 Obs. 101; Adams' Case, 11 Leg. Obs 415; People v. Grunzig, 2 Edm. Sel. Cas. 236 
 (1851). 
 
 a R. v. Nairn, 19 How. St. Tr. 1296: Mrs. Adams' Case, 5 Leg. Obs. 59; Mrs. 
 Spooner's Case, 2 Chand. Cr. Tr. 1 ; Pjerson v. People, 18 Hun, 236 (1879). 
 
 » State v. Watkins, 9 Conn. 47; Templeton v. People, 27 Mich. 501 (1S73); St. 
 Louis i'. State, 8 Neb. 405 (1879). 
 
 * Johnson v. State, 17 Ala. 622 (1850). 
 
 « People v. Green, 1 Park. C. C. 32 (1846). 
 
 • Johnson v. State, 17 Ala. 622 (1850). 
 
RULE 103. J PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 499 
 
 i 
 
 and on the morning of January 10th waylays W. and kills him. The 
 motive here is jealousy. 1 
 
 VIII. H. is indebted to C. C. is a hard creditor and refuses his offers 
 of compromise. H. complains of and is exasperated at C.'s conduct 
 and finally kills him. 2 
 
 IX. S. was engaged by the agent (G.) of an estate to manage it. S. 
 was subsequently removed from his position by the agent, and the ten- 
 ants whom he had obtained were likewise evicted. S. killed G. 3 
 
 X. C. is a litigant. A decree is rendered against him which he con- 
 siders unjust, and for which he threatens to kill the judge. He 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.'s wife. The fact that B. and his wife had, one year previous to the 
 killing, quarrelled and separated is relevant as showing a motive in B. 5 
 
 XII. G. wishes to marry. G.'s parents oppose the match. G. poisons 
 her parents. 6 
 
 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 H. ; 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 are led to the conclusion that 
 his marriage to the deceased was the great, if not 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 similar case the court said : 7 
 " The defendant was charged with the murder of his wife. 
 The marital relation existing between them furnished a 
 strong presumption in favor of his innocence. In the 
 
 Com. t. Fuller, 2 Wheel. Cr. Cas. 223 (1820). 
 a People v. How, 2 Wheel. Cr. Cas. 223 (1824). 
 
 » Stewart's Case, 19 How. St. Tr. 179. And see People v. Breen, i Park. C. 0. 3S0 
 (1860). 
 
 * Chislie's Case, 9 Leg. Obs. 186. 
 
 6 Baalam v. State, 17 Ala. 451 (1850). 
 
 • Margaret Gottfried's Case, 4 Leg. Obs, 101 ; R. v. Blandy, 18 How. St. Tr. 1117. 
 ' People v. Hendriukson, 1 Park. C. C. 415 (1853). 
 
500 PRESUMPTIVE EVIDENCE. [PULE 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 disregarded the claims 
 of connubial duty. For this purpose evidence tending, 
 however slightly, to show an alienation of affection — 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 IV. 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 
 
KULE 103. J PUESUMPTIONS IN DISFAVOR OF INNOCENCE. 501 
 
 to examine into the motive. If, however, the 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 which 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 case. The worse 
 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 taking the life of the young 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 prosecution 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 
 agreeable to other members of his family. * * * And 
 it is claimed on the part of the prosecution that they have 
 proved that there was a bad feeling existing on the part of 
 
502 PRESUMPTIVE EVIDENCE. [HUXE 103. 
 
 the mother of the prisoner in regard to this marriage of her 
 son. * * * Now this is evidence — legitimate evidence. 
 You are to say to what weight it is entitled. * * * It 
 is urged by the prosecution, also, that this match thus hastily 
 and prematurely entered into did not indicate that desirable 
 and abiding affection which is supposed to be incompatible 
 with the feeling that induced the commission of this crime; 
 and that a former attachment to Miss Godfrey (the same 
 one that went 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 eharged 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 
 high crime." 
 
 On the trial of case IX., in charging the jury, the jud^e 
 said: " Yery strange causes it must be confessed for the 
 
RULE 103. J PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 503 
 
 pannel's (prisoner) conceiving a violent and even a mortal 
 enmity against Glenure. And yet nothing is more certain 
 than that violent offense may be taken where no just or even 
 plausible cause for it hath been given ; and 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 was, 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 
 party 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 should 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 Glenbucket 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 1689, the victim 
 being 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, was Buford. 
 Chislie's sentence was " that he be carried on a hurdle from 
 the Talbooth of Edinburgh to the Market Cross, on Wednes- 
 day, the 3d of April inst. (he was tried on the 31st of the 
 previous month), and there, between the hours of two and 
 four of the afternoon, to have his right hand cut off alive, 
 and then to be hanged upon a gibbet with the pistol about 
 his neck with which he committed the murder. His body 
 
504 PRESUMPTIVE EVIDENCE. [RULE 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. 
 
 "When," 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 juiy 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 impli- 
 cating the accused as the guilty agent, such proof could 
 have had no legitimate 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. J PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 505 
 
 however, urged that if the two quarrel, and subsequently 
 are reconciled to each other, the law will not presume 
 that malice exists between them. This is true, and the law 
 probably would 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, 
 are conclusive of guilt. But presumptions of fact are to 
 be drawn by the iury, and every fact that tends to prove 
 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 
 quarrel 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. R. is a clergyman, who while in another and former parish, had 
 seduced a girl and got her with child. One day this girl appears at R.'s 
 house, demands money, and threatens to expose him. R. takes her to 
 his room and cuts her throat with a razor. 1 
 
 II. C. is indicted for the murder of H. The fact that C. had previously 
 employed H. to murder one P., shows a motive for the crime and 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 that W. was at the time 
 of his death endeavoring to discover the murderers of E. is relevant as 
 showing a motive. 3 
 
 IV. T. is indicted for the murder of W., a female. The fact that T. 
 had previously maintained criminal relations with W. is relevant on the 
 question of motive.* 
 
 1 Riembauer'B Case, 3 Leg. Obs. 242. And see JB. v. Eicliardson, Burr. Cir. Ev. 
 243. 
 
 » Rex v. Cleves, 4 C. & P. 221 (1830). 
 > Dunn v. State, 2 Ark. 227 (1S39). 
 * Turner v. Com., 86 Pa. St. 54 (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 larceny and that B. had 
 turned State's evidence before the murder, is relevant as showing a 
 motive in M. to kill E. 1 
 
 VI. S. is indicted for the murder of L. who was married to Si'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. 2 
 
 KULE 104. — Proof of opportunity possessed by the ac- 
 cused to commit the crime may raise 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. 
 
 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. 3 
 
 II. T. is indicted for entering U.'s room in the night and stealing his 
 money. The fact that T. is a lodger in the same house is relevant as 
 showing an opportunity. 4 
 
 III. S. is found dead in a house. E. is seen coming out of the house 
 with a bloody sword in his hand. The presumption is that E. has killed 
 S. This is the violent presumption of Sir Edward Coke. 6 
 
 IV. H. 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. 6 
 
 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. 0. 756 (1881). 
 
 2 People v. Stout, 4 Park. 71 (1858). 
 s Burr. Ev. 356. 
 
 * Id. 357. 
 
 ' Coke Litt. 66. 
 
 • State v. Howard, 82 N. C. 627 (1880). 
 
RULE 105. J PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 507 
 
 taken and carried away. T. maintained that no one had entered or gone 
 out 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 market a butcher tapped her on the 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 house 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 large 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 entirely 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. 1 
 
 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 
 one of the real murderers that they had gained admittance into the house 
 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. 3 
 
 RULE 105. — Proof of a former attempt hy the accused 
 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 her laudanum. The 
 fact that A. had on a former occasion given her laudanum, which made 
 her sick, is relevant. 3 
 
 1 Taantje's Case, Phill. Ciro. Bv. XXXVIII. 
 
 i Best Ev., sec. 453. 
 
 3 Johnson v. State, 17 Ala. 622 (1850). 
 
508 PRESUMPTIVE EVIDENCE. [RULE 106. 
 
 II. A. is charged with 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. 1 
 
 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. 2 
 
 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. 3 
 
 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 case 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 different. It might then have been very material to 
 inquire whether he gave her the poisoD 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. 
 
 I. A. is accused of the murder of B. by poison; C. of the murder of 
 D. by shooting; E. of committing a burglary; P. of arson; G. of coun- 
 terfeiting. The fact that A. had previously purchased some poison; that 
 
 1 Reg. v. Gray, i P. & F. 1102. 
 
 s K. v. Gearing, 18 L. J. (51. C.) 215 j Mrs. Arden's Case, 5 Leg. Obs. 69. 
 
 s E. v. Voke, It. & R. 5,1 (1S23). 
 
 * K. u. Dorselt, 2 C. & K. 306. 
 
RULE 106. ] PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 509 
 
 C. had bought, borrowed, or stolen a gun 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 instrument to manufacture 
 coin, are relevant and raise an inference of fact of guilt in each case. 1 
 
 II. K. is accused of the murder of A. by stabbing him. The fact that 
 K. had previously taken a sword to a cutter, telling him that he wanted 
 it ground "as sharp as a carving knife," as he wished to use it as a 
 carving knife, is relevant. 2 
 
 III. F. is accused of the murder of W. by shooting him with a pistol. 
 The fact that P., a few days prior, had procured a pistol and had spent 
 some time practicing at a mark is relevant. 8 
 
 IV. S. was indicted for murdering R. by shooting. The fact that a 
 day or two previous S. had borrowed a gun from a Mend, stating that 
 he wanted, it to kill deer with, is relevant. 1 
 
 B. 
 
 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. 6 
 
 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. 6 
 
 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 fired at him, but it turned out to have been fired by 
 him. 7 
 
 l See cases passim. E. v. Hill, 20 How. St. Tr. 1317; People v. Peverelly, Burr. 
 Bv. 347. 
 
 2 K. v. Corder, Phill. Tr. 221. 
 
 » Com. u. Fuller, 2 Wheel. 223 (1820) ; E. v. Barbot, 18 How. St. Tr. 1261 (1753). 
 
 * Strangeway's Case, 5 Leg. Obs. 91. 
 
 » Drayne's Case, 5 Leg. Obs. 123 (1634) ; Ferrer's Case, 19 How. St. Tr. 904. 
 
 « Adams' Case, 11 Leg. Obs. 415 (1835). 
 
 f Patch's Case, Loudon, 1806. 
 
510 PRESUMPTIVE EVIDENCE. [bu£e 106. 
 
 II. A. is accused of the murder of B. It is proved that A., some time 
 previous, had spread a rumor that on account of ill-health B. would not 
 be likely to live very long. 1 
 
 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 representing 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 building, 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 though illegal, (B) or 
 where the crime for the execution of which the pre- 
 parations were made may have been subsequently frus- 
 trated or voluntarily abandoned (C). 
 
 Illustrations. 
 
 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 purchased the poison for no 
 other reason than to kill vermin. This overthrows the inference of 
 guilt. 3 
 
 II. 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. 1 
 
 Best Ev., 800. 455. 
 s Strangevvay's Case, 5 Leg. Obs. 91. 
 8 Best Ev., eeo. 456. 
 « Supra. 
 
EULB 107. J PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 511 
 
 I. A. is found killed by a bullet from a gun. It Is proved that B., a 
 neighbor, had purchased a gun the day before, and another neighbor C, 
 is found with a gun in his possession. The facts that B. had purchased 
 the gun for the purpose of poaching or that C. had stolen the gun to go 
 hunting with, explain the circumstances. 1 
 
 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 D. This over- 
 throws the inference arising from the purchase of the poison. 2 
 
 II. B. was an inn-keeper. One night one H. put up at B.'s inn having, 
 before lie retired to bed, remarked that he was carrying with him 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 H. 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 
 the 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. 3 
 
 KTTLE 107. — Threats or expressions of ill will on the 
 part of the accused concerning the victim are relevant 
 on the question of his guilt. 
 
 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 
 have," is relevant. 4 
 
 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. 5 
 
 III. A woman and her paramour were accused of murdering her hus- 
 band. She had been heard to say of her husband that " she lived a most 
 unhappy life with him and she wished him dead, or if that could not be 
 she wished herself dead." This is relevant. 6 
 
 IV. H. is accused of murdering J. The fact that before the murder 
 
 1 Best Ev., sec. 456. 
 
 ' Best Ev. 457. 
 
 8 Bradford's Case, Phillips' Cas. on Circumstantial Evidence, XXVI. 
 
 * People v. How, 2 Wheel. 415. 
 
 * E. v. Standsflcld, 11 How. St. Tr. 1397. 
 « K. a. Ogilvie, 19 How. St. Tr. 1290. 
 
512 PRESUMPTIVE EVIDENCE. [RULE 107. 
 
 H. was heard to say of J. -. " He deserves to have his throat cut " is rele- 
 vant. 1 
 
 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. 2 
 
 VI. H. is charged with the murder of M. H. has been heard to say 
 of M. : "If he don't do as he has agreed I will kill him." This is rele- 
 vant. 8 
 
 VII. 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 4 
 
 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. 5 
 
 IX. B. is indicted for the murder of S. Before the murder B. was 
 heard to say of S. -. " I will kick hell out of her. I will break her damned 
 neck." This is relevant. 8 
 
 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 threats, though made by the accused, 
 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 ham3 
 
 1 R. v. Harrison, 12 How. St. Tr. 841. 
 
 = Jim v. State, 5 Humph. 146 (1844) ; Eespublioa v. Bob, 4 Dall. 145 (1794). 
 
 s People v. How, 2 Wheel Cr. Cas. 412. 
 
 * E. v. Ogilvie, 19 How. St. Tr. 1273. 
 
 c Mrs. Spooner's Case, 2 Chand. Cr. Tr. 14. 
 
 • State v. Heed, 62 Me. 130 (1S74). 
 
KTJLE 108. J TRESUMPTIONS IN DISFAVOR OF INNOCENCE. 513 
 
 cut across for him before long." A short time afterwards this man was 
 found dead with his hams cut across. The inference was that the woman 
 had killed him, and she 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. 1 
 
 II. 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 the means 
 for committing the crime charged raises a presump- 
 tion of his guilt (A.) And this presumption may be 
 strengthened or weakened according to the occupa- 
 tion, character or sex of the accused. (B.) 
 
 Illustrations . 
 
 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 his guilt. 8 
 
 II. A. is indicted for coining. The fact that in A.'s house are found 
 Instruments fitted for coining raises a presumption of guilt. 4 
 
 III. B. is indicted for poisoning C. The fact that a quantity of the 
 same powder which was found in the stomach of C. was also found in 
 the possession of B. is relevant. 6 
 
 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. 6 
 
 In case I. it was said : " "When the criminal law writers 
 say that you shall not give in evidence the stealing of one 
 
 1 Best Ev., see. 458, note. 
 
 2 This was the fact in the celebrated case of the killing ol Parkman by Prof. 
 Webster. Best Ev. (Morg. cd.), sec. 458, note. 
 
 s State ». Antonio, 2 Const. (S.C.) 776(1816). 
 
 * Murphy's Case, 4 City Hall Eeo. 42 ; Commonwealth v. Williams,, 2. Cush. 582.. 
 6 Burr. Ev. S63. 
 
 • E. v. Thurtcll, Phil. Tr. 7. 
 
 33 
 
514 PRESUMPTIVE 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.] PRESUMPTIONS IN DISFAVOR OP INNOCENCE. 515 
 
 offense of passing the counterfeit money, but as a circum- 
 stance 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." 
 
 I. A. is Indicted for burglary. 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. 1 
 
 II. Both B. and D. are suspected 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. 2 
 
 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 respectable merchant who has 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. 8 
 
 IV. A woman being suspected of killing a man by cutting his throat, 
 her house is searched and a razor found in her possession. This raises 
 an inference of guilt.* 
 
 RULE 109. — The possession by the accused of the fruits 
 of the crime raises a presumption of his guilt. 
 
 Illustrations. 
 I. M. is indicted for the murder of a woman. When arrested, prop- 
 
 l Bnrr. Ev. 364. 
 
 'Id. 
 
 'Id. 
 
 « Id., R. v. Heath, Wills' Ev. 98, 
 
516 PRESUMPTIVE EVIDENCE. [RULE 109. 
 
 erty belonging to the woman, such as dress and jewelry, is found in his 
 possession. This raises an inference of his guilt. 1 
 
 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. 3 
 
 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 
 
 l State v. Millain,3 Nev. 409 (1867). 
 
 • Knickerbocker d. People, 43 N. Y. 177 (1870) ; Davis v. People, 1 Park. 0. 0.447 
 (1853). 
 
 « Cicely v. State, 13 S. & M. 220 (1849) ; Drayne's Case, 5 Leg. Obs. 124; Riem- 
 bauer's Case, 3 Id. 243. 
 
RULE 109. J PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 517 
 
 of the same that he is the felon. If the property is such 
 ill character or quantity as would not be likely to come 
 honestly into the hands of. the person with whom it may be 
 found, as ladies' dresses, jewelry, etc., in the hands of a 
 single man not engaged in the trade or pawnbroking 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. Mere 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 anything 
 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 offense proved being a 
 burglarious larceny — a burglarious taking — recent pos- 
 fession thereafter proves the prisoner guilty of that offense 
 if it proves anything, as no other offense or taking is 
 proved. Strike out the proof 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. [EULE 109. 
 
 Sub-Rule 1. — In prosecutions for larceny or robbery, the 
 recent possession of the stolen property raises the pre- 
 sumption that the possessor is the thief. 1 
 
 Illustrations. 
 
 I. W. is indicted for stealing a pair of shoes 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. 2 
 
 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. 3 
 
 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. 4 
 
 IV. A number of skins are stolen in Kansas. Shortly after they are 
 found in the possession of C. in Missouri. This raises a presumption 
 that C. stole them. 5 
 
 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. 6 
 
 1 Price v. Com., 21 Gratt. 146 (1872) ; State v. Wikoff, 15 Mo. 174 (1851). And see 
 illustrations post. In a lew States it is held that from recent possession alone no 
 presumption of guilt can arise, and that this unaccompanied by other facts will not 
 warrant a conviction. Conkwright 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. H. 510 (1869). The 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 (1873). And see Pennsylvania v. Myers, Add. 320; 
 States. Gray, 37 Mo. 463 (1866) ; State v. Eruin, 34 Mo. 540 (1864) ; State v. Williams, 
 9 Ired. (I,.) 140; State «. Brewster, 7 Vt. 122 (1835); Hughes v. State, 8 Humph. 75 
 (1847) ; State v. Weston, 9 Conn. 527 (1833) ; Fuller v. State 48 Ala. 273 (1872) ; linger 
 v. State, 42 Miss. 642 (1869) ; Atzroth v. State, 10 Fla. 207 (1860) ; Wise v. State, 24 Ga. 
 31 (1858) ; Mondragon „. State, 33 Tex. 480 (1870) ; Com. v. Millard, 1 Mass. 6 (1804);. 
 Simpson u. State, 4 Humph. 456 ; Sneathers v. State, 46 Ind. 447 ; Tuberville v. State, 
 42 Ind. 490; Jones v. State, 49 Ind. 549; Hallu. State, 8 Ind 439; Comfort v. People, 
 54 111. 404 ; People v. Wilson, 30 Mich. 486 ; State v. Bennett, 3 Brcv. 514 (1815) ; Curtis 
 ». State, 6 Cold. 11 (1S68) ; E. v. Smith, Ey. & M. 205 (1825) ; State v. Adams, 1 Hayw. 
 (N. C.) 463 (1797). Waters v. People, 104 III. 545 (1882) ; Stokes v. State, 58 Miss. 677 
 (1SS1) ; State v. Brown, 75 Mo. 317 (1882) ; State v. liulterfield, 75 Mo. 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 property in a person's possession the pre- 
 sumption is that he stole the whole of it. Thompson v. People, 4 Neb. 528 (1876); 
 Thompson.^. State, 6 Neb. 102 (1877). 
 
 3 People v. Preston, 1 Wheel. 41 (1822). 
 
 * State v. Merrick, 19 Me. 398 (1841). 
 
 6 State v. Cassidy, 12 Kas. 559 (1874). 
 
 • Stale v. Turner, 65 N. C. 593 (1871). 
 
RULE 109. J PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 519 
 
 VI. A horse is stolen from C. On the same day C. is discovered 
 riding him. This raises a presumption that C. is the thief. This is Lord 
 Hale's illustration. 
 
 The reasons on which this presumption is founded are 
 well stated in a learned note to the report of Cochin's Case. 1 * 
 "As a general proposition where a person is in possession of 
 property it is reasonable to suppose that he is able to give 
 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 prosecutions for larceny, 
 where the goods are proved to have been stolen, it is a rule 
 of law applicable to these cases that possession by the 
 accused soon after they were stolen, raises a reasonable pre- 
 
 1 2 Hale Picas of the Crown, 289. 
 s 2Lewin, 2S4(1836). 
 
520 PRESUMPTIVE EVIDENCE. [RULE 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 fade 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. Aa 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 finds that the defendant did adduce evi- 
 dence tending to prove that he bought the sheep of a 
 stranger. It may be easily conceited 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 every one 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 oossession of stolen goods alone is not sufficient 
 
EULE 109. J PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 521 
 
 to warrant conviction, the court said : " Still the overwhelm- 
 ing weight 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 conclusive le<ral 
 presumption. It is a presumption which is strong or weak 
 according to the nature of the property stolen, the time and 
 place of the larceny, the time within which the possession is 
 shown, the manner of holding and the various other condi- 
 tions which, appearing 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 appropriate, many cases will depend upon the peculiar 
 facts of 'the case." 
 In case V. it was said: "Where a person is found in 
 
522 PEESUMPTIVE EVIDENCE. [EULE 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 his 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). 
 
 Illustrations. 
 
 A. 
 
 I. C. is indicted for stealing a piece of wood, the property of H. It is 
 found in the possession of C, five days 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. 1 
 
 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 isprima 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 E. v. Crowhurst, 1 C. & K. 370 (1844) ; E. v. Smith, 2 0. & K. 206 (.1845). 
 
RULE 109. J PRESUMPTIONS IN DISFAVOR OP INNOCENCE. 523 
 
 B. 
 
 I. A beetle head is stolen from the house of W. Fifteen months 
 thereafter it is found in E.'s house and identified by W. as his. E. is 
 called on to explain his possession. If E. says, " I can not remember 
 ■where I got it," this will be sufficient and he must be acquitted. But if 
 E. says, " I bought this beetle at a sale eight years ago," this contradicts 
 the identity, which remains a question on which E.'s guilt or innocence 
 depends. 1 
 
 In case I., Alderson, B., said to the jury : " If the pris- 
 oner had said in the first instance. ' Why 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 
 thing so found in his possession, and sworn by the prosecu- 
 tor, to be his own property by right of a purchase made 
 eight 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 ; for 
 if it be true the prosecutor is wrong and the identity of the 
 thing 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 another 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." 
 
 l Queen v. Evans, 2 Cox C. C. 270 (1847). 
 
524 PRESUMPTIVE EVIDENCE. [RULE 109. 
 
 Sub-Rule 3. — What is or is not "recent" within Sub- 
 Rule 1 depends upon the cost, bulk, or transferability of 
 the article or property stolen. 1 
 
 That 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 the nature of the property, as some articles pass Irom. hand to hand more 
 readily than others. Trice v. Com., 21 Gratt. 846 (1872). 
 
RULE 109. J PRESUMPTIONS IN DISFAVOR OP INNOCENCE. 525 
 
 could prove, by other evidences than his own testimony, 
 how he obtained the possession 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 are stolen from a farmer. A month afterwards 
 they are found in the possession of another person. This alone can not 
 raise an inference that the latter stole them, 1 
 
 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 P. stole 
 them. 2 
 
 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. 3 
 
 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. 4 
 
 V. A shovel is stolen from A. in August, 1841. In March, 1842, it is 
 found in C.'s house. This raises no presumption that C. stole it. 5 
 
 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 five 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. 8 
 
 The reason for this limitation to the rule is well expressed 
 in a learned note to case I. "If the property," says the 
 
 1 Cocking' Case, 2 Lewin, 235 (18361. 
 
 s H. v. Partridge, 7 C. & P. 651 (1S36). 
 
 8 R. v. Adams, 3 C. & P. 600 (1829) ; R. v. Hewlett, 2 Euss. on Cr. 728, note; R. v. 
 
 Dewliirst, 2 Stark. Ev. 419, note; R. v. , 2 C. & P. 459 (1826) ; State v. Shaw, 4 
 
 Jones (L.), 446 (1837) ; State v. Kinman, 7 Rich. (Li.) 497 (1854) ; Warren v. State, 1 G. 
 Greene, 106 (1848). 
 
 * R. v. Cooper, 3 C. & K. 318 (1852). 
 
 6 R. v. Cruttenden, 6 Jur. 207 (1842). 
 
 « Queen v. Evans, 2 Cox C. C. 270 (1847). 
 
 » R. v. Atkinson, 1 Cr. & Dix, 161 (1825). 
 
 8 Jones v. State, 26 Miss. 247 (1S53). 
 
526 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 interesting 
 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 afford 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. J PRESUMPTIONS IN DISFAVOR OE INNOCENCE. 527 
 
 would be greatly 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 Patteson, 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 be a long time; but here that is not so." 
 
 In case IV. 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., Gurney, B., said to the jury: " I have fre- 
 quently had occasion to tell you glntlemen 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 by 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 VII. it was said: " The finding of stolen prop- 
 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. [RULE 109. 
 
 burglary, 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 slight 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 be entirely removed by 
 the lapse of such time as to render it not improbable that 
 
RULE 110. J PRESUMPTIONS IN DISFAVOR OP INNOCENCE. 529 
 
 the goods may have been taken by another, and passed to 
 the accused, and thus wholly destroy the presumption. 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." 
 
 RULE 110. — From proof of a sudden change having 
 taken place in the life and circumstances of the 
 accused subsequent to the crime, a presumption of his 
 guilt may arise. 
 
 Illustrations. 
 
 I. A., a rich man, is found murdered and robbed. B., a poor relative, 
 immediately afterwards commences to live and spend money like a rich 
 man. This may raise an inference of B.'s guilt. 1 
 
 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. 2 
 
 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 M., although 
 the bills are not identified as the bills stolen from the trunk. 3 
 
 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.* 
 
 i Best Ev., sec. 459. 
 
 2 Drayne's Case,6 Leg. Obs. 123 (1664). 
 
 • Com. v. Montgomery, 11 Mete. 634 (1846). 
 
 * Moye v. State, 66 Ga. 740 (1881). 
 
 34 
 
530 PRESUMPTIVE EVIDENCE. [RULE 111. 
 
 In case III. it was said : " The further objection is that 
 the judge instructed the jury that the possession by the 
 defendant of two one hundred dollar 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 
 large 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 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. 
 
 Illustrations. 
 
 I. D. was suspected of having poisoned E. It appeared that 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 H. and J. that he had died from the 
 effects of a venereal complaint. This raises an inference that D. was 
 guilty. 1 
 
 II. 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 that 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. 3 
 
 1 U. v. Donellan, PhiL Tr. 126. 
 
 2 State v. Cicely, 13 S. & M. 206. 
 
 s State v. Adams, 1 Hayw. (N. 0.) 464. 
 
RULE 111.] PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 531 
 
 IV. R. is indicted for stealing from dwelling-houses. On being inter- 
 rogated she stated at one time that she is a widow, at another that 
 she has a husband ; to one she says that the property is hers, having pur- 
 chased it in an adjoiniug city; to another she says that it was brought to 
 her house by a man in embarrassed circumstances to conceal it from his 
 creditors. This raises a presumption of R.'s guilt. 1 
 
 V. A.'s house is robbed and burned. Bank 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 
 for 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 the bills was evidence to prove that he did not come honestly by 
 them. Held, correct. 2 
 
 In case V. it was said: "It is insisted that this 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 he 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 states 
 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 of 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 give, and which the 
 
 l Mary Kiley's Case, 1 City Hall Kec. 23 (1816). And see Com. v. Goodwin, 14 
 Gray, 55 (1859). The admission In evidence ol the prisoner's false statements made 
 at the time of his arrest warranting an inference of guilt, does not entitle him to 
 show that he had previously, on other occasions, given a different and true account 
 of the same facts. Id. 
 
 * State v. Gillis, 4 Dev. (L.) 607 (1834). 
 
532 PRESUMPTIVE EVIDENCE. [EULE 111. 
 
 jury understand his words to convey. * * * Upon an 
 anxious and deliberate consideration of all that has been 
 urged in argument, and of all which our own reflections 
 can suggest, we are bound to declare that we 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 sum 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 h% 
 the consciousness which it indicates and the interests which 
 
RULE 11 2. J PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 533 
 
 are intended to be served by it, are unquestionably 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 be 
 considered and weighed by the jury, seems well warranted 
 by reason, observation and experience. Whether by itself 
 or in connection with the other matters testified, it produces 
 a conviction so settled and undoubting 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 the investigation of the crime raises 
 the presumption that he is the criminal. 
 
 Illustrations. 
 
 I. S. is suspected of having 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. 1 
 
 II. S. disappeared while living in R.'s house. R. Deing suspected of 
 murdering him, and it being proposed to take up the basement floor, 
 objected strongly, urging that if the floor was taken up the house would 
 fall down. The officers of the law persisted and the body of S. was 
 found underneath the floor. A strong inference of R 's guilt arose. 2 
 
 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 compelled 
 by force to put her feet in the tracks. This raises a presumption of 
 guilt in C. s 
 
 1 E. v. Stansfield, 11 How. St. Tr. 1402. 
 
 2 State v. Robinson, Burr. Ev. 462. 
 8 State v. Cicely, 13 S. & M. 205. 
 
534 PKESUMPTIYE EVIDENCE. [RULE 113. 
 
 RULE 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). 
 
 Illustrations. 
 
 A. 
 
 I. T. comes into a town 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 auctioneer endeavors 
 to avoid him. The conduct of T. raises a presumption of his guilt. 1 
 
 II. A. being accused of the murder of B. shows a great. repugnance to 
 looking at the dead body of B. This is relevant. 2 
 
 III. S. disappeared while living with R., and suspicion was cast upon 
 R. because he refused to sleep in the house thereafter, giving as a ground 
 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. 3 
 
 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. 4 
 
 " 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 had been proved — that is that 
 the horse had been stolen — much less than the circum- 
 
 1 Tyner v. State, 5 Humph. 383 (1844). 
 
 2 E. v. Stewart, 19 How. St. Tr. 156; Mrs. Spooner's Case, 2 Chand. Am. Cr. Tr. 
 13; K. v. Ogilvie, 19 How. St. Tr. 1284. 
 
 a State v. Robinson, Burr. Ev. 462. 
 » Johnson v. State, 17 Ala. 622 (1850). 
 
EULE 11 3. J PRESUMPTIONS IS DISFAVOR OF IXNOCENCE . 535 
 
 stances proved would have established that the prisoner was 
 the thief." 
 
 In 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. Doubtless, 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 with which certain evidence should be received, says : 
 ' Not unfrequently 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 ' - 1 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 practical 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 prove his conscious guilt, which is proof of crime. Now 
 this conscious guilt is altogether internal, but the law allows 
 
 1 Eoscoe Crim. Ev. 15. 
 
536 PEESUMPTIVE EVIDENCE. [EULE 113. 
 
 that proof 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 party 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- 
 pared 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 guilt 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 lor a political prisoner 
 thought to he 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 liason. 1 
 
 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. 2 
 
 l In this case, which is often cited, A.'s presence of mind saved himself and her 
 by uncovering enough of her person to the officer to indicate the sex without 
 betraying Ihe individual. Best Ev., sec. 466. 
 
 * Best By., sec. 166 
 
RULE 114.] PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 537 
 
 RULE 114. — The flight of the accused (A) or his 
 attempts to escape (B) raise a presumption of his 
 guilt ; unless it appear that the act was for another 
 reason (C). 
 
 Illustrations. 
 
 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 though immedi- 
 ately after the crime was committed a search 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. 1 
 
 II. A. is out on bail, pending his trial for a crime. When the case is 
 called it is found that A. has left the State and forfeited his bond. He is 
 subsequently brought back. His flight raises a presumption of his guilt. 2 
 
 " It was proven by the Commonwealth," it was said in 
 case I., " that 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 his 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. 3 
 
 1 Plummer«. Com. 1 Bush, 76 (1866). And, see. People v. All Choy, 1 Idaho, 317 
 (1870) ; People v. Stanley, 47 Cal. 117 (1873) ; Smith v. State,58 Miss. 873 (1881) ; Math- 
 ews v. State, 9 Tex. (App.) 138 (1880) ; Arnold v. State, 9 Tex. (App.) 436 (1880) ; 
 Aiken v. State, 10 Tex. (App.) 610 (1SS1) ; Blake v. State, 3 Tex. (App.) 581 (1877) ; 
 Gose v. State, 6 Tex. (App.) 121 (1879) ; People v. Look Wing, 61 Cal. 381 (1883) ; Syl- 
 vester v. State, 71 Ala. 25 (1881). 
 
 2 Porter v. State, 2 lnd. 435 (1850). 
 
 » Murrell v. State, 46 Ala 89 (1871) ; Foxley's Case.B Coke, 109b; 43 Eliz.; People 
 v. Wong Ah Ngow, 54 Cal. 151 (1880). In Iowa it is held that the presumption ol guilt 
 Iranian attempt to escape is very slight. "Anciently," says the court, " the com- 
 mon law attached undue significance to an attempt to evade arrest, or to escape 
 from it. In our time, however, the law will not allow a party to he convicfed even 
 on his own confession, if it be uncorroborated." State v. Arthur, 23 Iowa, 433 (1867). 
 When a culprit recklessly destroys life in order to escape the consequences of 
 another crime, the evidence of guilt of that crime is thereby strengthened. Revel 
 v. State, 26 Ga. 275 (1858). 
 
538 PRESUMPTIVE EVIDENCE. [RULE 114. 
 
 II. A., on being apprehended for a crime, attempts to escape. This 
 raises a presumption of A.'s guilt. 1 
 
 III. D., while in custody for a crime, attempts to bribe one of his 
 guards. This raises an inference of D.'s guilt. 2 
 
 IV. A. being accused of a crime jointly with B., advises and assists B. 
 to escape. This raises an inference of A.'s guilt. 3 
 
 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 v. Com. 4 Gratt. 541 (1347) ; Fanning v. State, 14 Mo. 386 (1S51) ; State v. 
 Mallon, 75 Mo. 356 (1SS2) ; People v. Strong, 46 Cal. 302 (1873) ; State v. Williams, 54 
 Mo. 170 (1S73) ; State v. Phillips, 21 Mo. 485 (1857). 
 
 2 Dean v. Com. 4 Gratt. 541 (1847) ; Whaley v. State, 11 Ga. 127 (1852.) 
 
 s People v . Kathbun, 21 Wend. 509 (1839) ; People v. Pitcher, 15 Mich. 397 (1867). 
 
RULE 115. J PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 539 
 
 cence. The prisoner and his friends may introduce a third 
 person to give the advice and hear the refusal who may be 
 a witness 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 which they are sus- 
 pected of being guilty of, fly from their homes to a distant State. This 
 raises a presumption of guilt. The fact that A. and B. fled because 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. 3 
 
 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 
 alone.* 
 
 " 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, was competent evidence which the 
 jury had a right to regard as conducing to rebut the pre- 
 sumption of guilt arising from the concealment or flight of 
 the appellants." 
 
 KTILE 115. — The destruction (A), concealment (B), or 
 fabrication ( C ) of evidence by the accused raises a pre- 
 sumption of his guilt — omnia prsesumuntur contra 
 spoliatorem. 
 
 On the trial of Lord Melville, 6 the solicitor-general (Sir 
 Samuel Eomilly), in addressing the House of Lords and 
 
 1 Peoples. Rathbun, 21 Wend. 519 (1839). 
 
 2 Plummer v. Cora., 1 Bush, 76 (1866) ; Golden v. State, 25 Ga. 527 (1853) ; Arnold v 
 State, 9 Tex. (App.) 436 (1S80). 
 
 s State v. Mallon, 75 Mo. 356 (1882). 
 
 * Best Ev., sec. 461. 
 
 6 29 How. St. Tr. 1194 (1806). 
 
540 PRESUMPTIVE EVIDENCE. [RULE 115. 
 
 speaking of the act of the prisoner in destroying certain 
 vouchers, said : " I should think it could hardly be necessary 
 to your lordships collectively ; I am sure it can not be to 
 many of you 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 was 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. Delamaire, 
 Daltonv. Coatsworth and White v. Lincoln 1 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 
 against 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 
 wore upon the day on which the man was murdered, whether 
 a jury would not be directed to presume or whether 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 would not be expressly 
 directed to presume guilt from this, I would ask whether 
 the party's having destroyed the clothes he wore upon the 
 
 i See Ante, ch. VII, p. 140. 
 
RULE 11 5. J PRESUMPTIONS IN DISFAVOR OP INNOCENCE. 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. D., who resided with E., is accused of poisoning Mm. 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 
 H. wrote a second letter as to the investigation of the body by physicians, 
 but saying nothing about poison. "When the doctors came D. showed 
 them the second letter but said nothing about the first, and on being 
 asked the purpose of the examination told them that it was only for the 
 satisfaction of the family. The physicians, therefore, suspecting nothing, 
 omitted to search for poison, and D. 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. 3 
 
 IV. A. being accused of a crime attempts to spirit away a witness. 
 This is relevant.* 
 
 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. 5 
 
 II. A., who was a soldier, was accused of the murder of C. In order 
 to identify a soldier who had sold a watch belonging to C. to B. the com- 
 
 l R. -v. Donnall, Wills' Cire. Ev. 188. 
 ' E. v. Donnellan, Phill. Tr. 131. 
 » Burr. Ev. 412. 
 
 * Martin v. State, 28 Ala. 71 (1856). 
 
 <■ Stewart's Case, 2 City Hall Keo. 187 (1817) ; People v. Gardner, 2 Wheeler, 23 
 (1822). 
 
542 PRESUMPTIVE EVIDENCE. [RULE 115. 
 
 pany was drawn up in 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. was guilty. 1 
 
 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. 2 
 
 IV. 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. 3 
 
 In case III. it was said: "The prisoner concealed the 
 killing for several hours. He has never admitted the kill- 
 ing 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. 4 
 
 1 Flanagan v. State, 25 Ark. 92 (1869). 
 
 2 Lanergan v. People, 6 Park. C. C. 225 (1863). 
 » Millei-u. People, 39 111. 166 (1866). 
 
 1 R. ■*. Rush, Burr. Ev. 435. 
 
RULE 11 5. J PRESUMPTIONS IX DISFAVOR OF INNOCENCE. 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- 
 cide. But it is proved that it is A.'s pistol, and that A. placed it there. 
 This raises a presumption of A.'s guilt. 1 
 
 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. 8 
 
 In case III. it was said: "The falsification of records, 
 either by interlineations or erasures, with reference to a 
 matter in which the party making such falsification is sus- 
 pected or charged, or liable to the suspected or charged with 
 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. «. Green, 7 How. St. Tr. 159 ; U. v. Norkutt, 14 Id. 1324. 
 
 2 IT. S. v. Randall, Deady, 543 (1S69). In State v. Knapp, 45 N. 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 appellate 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. 205 (1866). 
 
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. 1 
 
 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 
 pi'oved. " Provided," say the old writers, 2 " 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 spoliatoris will pre- 
 sume fear where there appears to be a reasonable ground 
 for it." In JVorden's Case, 3 this presumption was carried 
 as far as this. A person having been told that one of the 
 stage 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 in 
 the coach, captured the highwayman. The latter was held 
 guilty of robbing the chaise passenger. 
 
 l Com. v. Webster, 5 Cush. 317, Shaw, C. J. 
 s See East's Pleas of the Crown, 711. 
 > Fost. 129. 
 
RULE 116.] PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 545 
 
 RULE 116. — Silence on the part of the accused when 
 charges are made against 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 within his power 
 raises a presumption of guilt (C). 
 
 Illustrations. 
 
 A. 
 
 I. A. is accused of administering a poison to his wife with the inten- 
 tion of killing her. A witness testifies that 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. 1 
 
 II. One S. being murdered, H. says toR., "Everybody suspects you. 
 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. says that he won $55 from D., the 
 night 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. s 
 
 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. 4 
 
 V. Several times while confined in jail, A. accused B. of the murder of 
 E. to which B. made no response. This is relevant. 5 
 
 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. 6 
 
 1 Com. v. Galavan, 9 Allen, 271 (1864). The conduct, demeanor, and expression 
 of the accused at or about the time of the commission of the crime with which he is 
 charged, are competent evidence against him. Blount v. State, 49 Ala. 381 (1873). 
 
 2 State v. Eeed, 62 Me. 130 (1874). 
 
 » Donnelly v. State, 26 N. J. (L.) 613 (1857) ; conird, State v. Edwards, 13 S. C. 30 
 0879). 
 
 * K. v. Smithies, 5 0. & P. 332 (1832). 
 
 » Ettinger v. Com., 98 Pa. St. 345 (1881) ; State v. Crockett, 82 N. C. 600 (1880). 
 
 « Moye i>. State, 66 Ga. 740 (1881). 
 
 35 
 
546 PRESUMPTIVE EVIDENCE. [RULE 116. 
 
 In case I. it was 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 under 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 II. 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 either 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 Stale v. Cleaves, 1 and its justice and pro- 
 
 1 59 Me. 300. 
 
RULE 11 6. J PRESUMPTIONS IN DISFAVOR OP INNOCENCE. 547 
 
 priety 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 : " "When a matter is stated in the 
 hearing of one which 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 * * * may 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 does 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 iu the truth of the 
 
548 PRESUMPTIVE EVIDENCE. [RULE 116. 
 
 statements 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 
 which be 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 answer 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 pei^son 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." 1 In a Missouri case 2 it is said: 
 " It is not in all instances where declarations are made in 
 the presence and bearing 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, bis silence 
 might fairly be construed into an admission, the declara- 
 tions will not be admissible." 
 
 1 Kelley v. People, 55 N. Y. 573 (1S74). 
 
 2 State v. Hamilton, 55 Mo. 523 (1874). 
 
ETJLE 116. J PRESUMPTIONS IN DISFAVOR OF INNOCENCE. 549 
 
 B. 
 
 I. A. and B. are charged with the joint commission of a felony. On 
 his examination before the committing magistrate, A. states in the pres- 
 ence of B. and in his hearing that he and B. committed the crime, but B. 
 makes no response. This is not relevant, and raises no presumption 
 against B. 1 
 
 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 robbing a man. K. 
 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 officers 
 observing, took up and found it contained money. B. said it was his bag 
 and contained all the money he had. K., though within hearing of all 
 that was said, remained silent. This raised no presumption against K., 
 and the declarations of B. and the officer are irrelevant. 3 
 
 IV. W. was confined in prison awaiting trial on a charge of burglary . 
 While in his cell N. was brought to the door and asked by a police officer, 
 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. answered, 
 "Yes, I will swear to it." W. made no denial or response. This raised 
 no presumption of W.'s guilt and was irrelevant. 4 
 
 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 R. v. Appelby, 3 Stark. 33 (1821) ; contra, Maguire v. People, 5 N. Y. (T. & 0.) 683 
 (1874). 
 
 2 Burr. 482, Shaw, C. J., in Com. v. Kenney, post. 
 
 3 Com. v. Kenney, 12 Mete. 235 (18t7) ; State v. Weaver, 57 Iowa, 732 (1882) ; con- 
 tra, Kelley v. People, 55 N. Y. 572 (1874). 
 
 * Com. v. Walker. 13 Allen, 570 (1866). In a New Jersey case it is said : " The 
 gMasi-judicial investigation instituted by Coroner Connery, of the city of New York, 
 improper and informal as it was might have restrained the accused from denying 
 or replying to the statement of Moses, and would have protected him from having 
 any unfavorable inference drawn from his silence." Donnelly v. State, 26 N. J. (L.) 
 613 (1857), and see Sullivan v. People, 31 Mich. 1 (1875). 
 
550 PRESUMPTIVE 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 within 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, we 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." 
 
ETJLE 11 6. J PRESUMPTIONS IN DISFAVOtt OF INNOCENCE. 551 
 
 Case IV. proceeds on the same principle, viz. : the officer 
 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 show that he was, and G. does not account for his whereabouts at that 
 time. This raises an inference that G. was there^J 
 
 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. 2 
 
 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. 608 (1865) ; People v. Dyle, 21 N. T. 578 (1860). A fail- 
 ure to produce evidence in his favor within his power may raise a presumption of 
 guilt. People v. McWhorter, 4 Barb. 438 (1813) ; Com. v. Clark, 14 Gray, 367 (1860). 
 But not, it seems, in Louisiana. States. Carr,25 La. Ann.407 (1873). 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. Upham, 38 
 Me. 261 (1854) ; State v. Collins, 3' Dev. 117; State v. O'Neal, 7 Ired. (L.) 251 (1847) ; 
 Donohoe v. People, 6 Park. 120 (1864). 
 
 2 State v. Simons, 17 N. H. 83 (1845), 
 
552 PEESUMPTIVE EVIDENCE. [kULE 116. 
 
 avail himself of this privilege raises a presumption against 
 him. In several cases it has been held that it does not. 1 
 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 would 
 seem as . illogical for a court to reject this inference as it 
 is impossible to prevent a jury from taking such fact into 
 consideration. 2 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, 3 " 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 he 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. 4 
 
 1 Beavers v. State, 58 Ind. 530; McKenzie v. State, 26 Ark. 334; People v. T^ler, 
 36Cal. 522; Rulofl v. People, 45 N. Y. 213; 5 Lans., 261 (1871); Com. v. Harlow, 110 
 Mass. 411 (1S72). 
 
 a See State v. Cameron, 40 Vt. 555. 
 
 8 State v. Cleaves, 59 Me. 300 (1871) ; State v. Lawrence, 57 Me. 574; State v. Bart- 
 lett, 55 Me. 200. 
 
 i Comstocfc v. State, 14 Neb. 205 (1883) ; Stover v. People, 56 N. T. 315 (1874). 
 
PART VI. 
 
 GENERAL RULES. 
 
 (553) 
 
CHAPTER XXI. 
 
 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 particular evi- 
 dence, unless and until the truth of such inference is 
 disproved. 
 
 Sub-Rule 1. — A presumption of law is a rule of law that a 
 particular inference- shall be drawn by a court or jury 
 from a particular circumstance. 
 
 Sub-Rule 2. — A presumption of fact is a rule of law that 
 a fact otherwise doubtful may be inferred from a fact 
 which is proved. 
 
 " Presumptions are of two kinds, natural and legal or 
 artificial. The natural presumption is when a fact is proved 
 wherefrom, 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." 2 
 
 "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 N. J. (L.) 72 (1832). 
 
 2 Patterson v. McCausland, 3 Bland Ch. 71 (1830). 
 
 (555) 
 
556 PRESUMPTIVE EVIDENCE. [RULE 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 offenders could be brought to punishment." 1 
 
 ' ' 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." a 
 
 " 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." 3 
 
 "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 fget 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." s 
 
 " 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 either do not arise or 
 are rebutted if they do not correspond with or are not ade- 
 quate to account for the circumstances actually proved." 6 
 
 In Justice v. Lang, 7 it is said : " Presumptions of law are, 
 in reality, rules of law and part of the law itself, and the 
 
 i Abbott, O. J., in E. v. Bnrdett, 4 B. & Aid. 161. 
 
 * Mason, J., in O'Gara v. Eisenlohr, 38 N. Y., 298 (1868). 
 
 8 Lawborn v. Carter, 11 Busb, 7 (1874) ; Bach v. Coin, 3 La. A Tin. 103 (1848). 
 
 * Waties, J., in Frost v. Brown, 2 Bay, 133 (1798). 
 
 * Union Bk. v. Middlebrook, 33 Conn. 100 (1866). 
 « Sutphen v. Cushman, 36 111. 187 (1864). 
 '52N.Y. 323(1873). 
 
RULE 11 7. J GENERAL RULES AS TO PRESUMPTIONS. 557 
 
 court may draw the inference whenever the requisite facts 
 are developed, whether in pleading or otherwise, while all 
 other presumptions, however obvious, being only inferences 
 of fact, can not be made without the intervention of a 
 jury. 1 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. 2 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. 3 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. 4 Whether an 
 argreement to pay interest is to be presumed from the estab- 
 lished usage and custom is a question for the jury. 6 "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. 6 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 
 
 i Best on Presumptions, 18. 
 
 2 1 Green's Ev., sec, 48. 
 
 » Foster v. Steele, 3 Bing. (N. 0.) 892. 
 
 * Best on Presumptions, 60. 
 
 » Meech v. Smith, 7 Wend 315. 
 
 « Olark v. Dutoher, 9 Cow. 674. 
 
558 PRESUMPTIVE EVIDENCE. [BULB 117. 
 
 and the parties take cum onere. 1 So, when an agreement 
 infer paries 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. 2 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. 3 
 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 nothing 
 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. 4 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." 5 
 In Hicks v. $ittiman, e 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 as 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, whenitis shown 
 that the roof of a house, without gutters or other obstruc- 
 
 i Johnson v. Underbill, decided by this court February 11, and cases cited by 
 Folger, J. 
 
 2 Pordage v. Cole, 1 Sandf. 319. 
 8 1 Greenl. Ev., sec, 44. 
 
 * Best on Pres. Ev., p. 15, sec. 14 ; Morgan v. Eavey, 6 H. & N. 265. 
 ' Churchward v. Coleman, L. E. 1 Q. B. 173. 
 
 • 93 111. 261 (1879). 
 
RULE 117. J GENERAL RULES AS TO PRESUMPTIONS. 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 gather 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 which 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." 
 
 Illustrations. 
 
 I. A boy under fourteen commits a crime. The presumption that he 
 is legally incapable is a presumption of law. 1 
 
 1 Ante, ch. XIV. 
 
560 PRESUMPTIVE EVIDENCE. [EULE 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. 1 
 
 III. A man kills another with a deadly weapon. The presumption 
 that he intended his death is a presumption of law. 2 
 
 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. 8 
 
 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. 4 
 
 In case IV. , 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 is termed ; 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 till 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. 1 
 But the authorities cited by him for the statement, all refer 
 
 1 Ante, oh. XIV. 
 
 2 Ante, ch. XTV. 
 
 s Tanner v. Hughes, 63 Pa. St. 289 (1866). 
 « Ham v. Barret, 23 Mo. 388 (1859). 
 Vol. 1, sec. 10. 
 
EULE 11 7. J GENEEAL EULES AS TO PEESUHPTIONS. 561 
 
 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 late C. J. Gibson, in Jones v. 
 Lewis, 1 that no judge has said the post-office 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 
 messenger 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 deposit in the post-office to one 
 living in the same city is insufficient. This was expressly 
 decided at the same time in Kraum v. McDowell.'' 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 law 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 plaintiff 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 
 
 1 8 W. & S. 15. a 8 W. & S. 138. 
 
 36 
 
5C2 PRESUMPTIVE EVIDENCE. [BULB 117. 
 
 of the drawees by delivery on payment. Now, while the 
 facts, when all collected by the jury, 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 mailing 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 which 
 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. 
 Where the facts are before the jury, the presumptions or 
 inferences they warrant are questions purely for them. 1 
 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, 46, 51. 
 
RULE 117. J GENERAL RULES AS TO PRESUMPTIONS. 563 
 
 Presumptions of payment arising against claims 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. 1 
 
 In Holmes v. Hunt, 2 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," 
 says he, "to prescribe rules of evidence is well settled. 3 
 This power has been often exercised by the Legislature, 
 with the sanction of the courts, so as to change 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 be prima facie evidence that the land has been 
 sold for non-payment of taxes at a time and in a manner 
 authorized bylaw.* 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. 5 A statute 
 providing that a notary's protest of a promissory note 
 
 i People v. Walden, 51 Cal. 588 (1877) ; People v. Carrillo, 54 Cal. 63 (1S79) ; Stone 
 v. Geyser Mining Co., 62 Cal. 517 (1877). 
 
 2 122 Mass. 505. 
 
 8 Tarsons, C. J., in Kendall v. Kingston, 5 Mass. 52*, 534 ; Washington, J., and 
 Marshall, C. J., in Ogden v. Saunders, 12 Wheat. 213, 262, 349. 
 
 * Pillow v. Roberts, 13 How. 472, 476 ; Callaman v. Hurley, 93 U. S. 337 ; Hand v. 
 Ballou, 2 Kernan, 541 ; Cooley on Const. Lira. (3d ed.) 367, 363. 
 
 6 Webb v. Denn, 17 How. 576. 
 
564 PRESUMPTIVE 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. 1 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. 2 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 be prima facie evidence in a suit against the 
 master for the penalty imposed on him for such refusal. 8 
 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. 4 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. 5 In 
 Goshen v. Richmond, & it was held that the provisions of 
 the statutes of 1845, 7 reenacted in the general statutes, 8 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 Tales v. Wadsworth, 23 Me., 653. 
 
 2 Gen. Stats., chap. 140, sees. 2, 42, 43; Hawks v. Brigham, 16 Gray, 661; Ellis «. 
 Drake, 8 Allen, 161, 163; Thompson v. Kenyon, 100 Mass. 108; Ohilds v. Dolan, 5 
 Allen, 319; Field v. Gooding, 106 Mass. 310, 312. 
 
 « U. S. St., February 28, 1803, sect. 4; U. S. Rev. Stats., sect 4578; Matthews v. 
 Offley, 3 Sumn., 115, 123. 
 
 * Sts. 1844, en. 102; 1864, ch. 121; Gen. Stats., ch. 172, sec. 10; Commonwealth v. 
 Thurlow, 24 Pick. 374; Commonwealth ». Kelly, 10 Cush. 69; Commonwealth v. 
 Lahey, 8 Gray, 459 ; Commonwealth v. Carpenter, 100 Mass. 204. 
 
 6 Stats. 1852, ch. 322, sec. 12; 1855, ch. 215, sec. 34; Commonwealth v. Williams, 6 
 Gray, 1; Commonwealth v. Eowe, 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. 
 1 Chap. 222. 
 
 » Chap. 107, sec. 2. 
 
RULE 117.] GENERAL RULES AS TO PRESUMPTIONS. 565 
 
 in the lifetime of both parties for determining such valid- 
 ity,' 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 withiu 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 oases 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 which they had knowledge before they were 
 made competent, but also in cases that were pending be- 
 fore.' 1 : 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. 2 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 it prima facie evidence of the facts 
 set forth in the examination of the witness, if the chancel- 
 
 i See, also, Monson v. Palmer, 8 Allen, 651, 556. 
 2 St. 1870, p. 393. 
 
566 PRESUMPTIVE 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.' 1 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, prima 
 facie evidence, and the statutes making particular facts 
 prima 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 
 
 l Howard v. Mert, 64 N. T. 262, 268. 
 
RULE 11 7. J GENERAL RULES AS TO PRESUMPTIONS. 567 
 
 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 
 United States v. Rathbone, 1 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.' 2 And the constitutionality of that statute 
 has since been affirmed by the Supreme Court of that State. 3 
 In Plimpton v. Somerset* and Copp v. Hanniher, 6 actions 
 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 facie 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 Brown v. Kimball, 6 and Stod- 
 dard v. Chapin. In Cobb v. HannHcer, 1 the court held 
 the provision for the appointment of a referee 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 Paine, 578. 
 
 2 2 Paine, 583. 
 
 » Lee v. Tillotson, 24 Wend. 337. 
 * 33 Vt. 283. 
 » 55 N. H. 179. 
 « 12 Vt. 617. 
 ' 15 Vt. 443. 
 
5G8 PRESUMPTIVE EVIDENCE. [RULE 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.' l The 
 constitutionality of the New Hampshire statute of 1823 has 
 since, upon elaborate consideration, been fully established. 3 
 In King v. Hopkins. 3 which was an action on the case 
 for flowing the plaintiff 's land, it was 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 
 Rhode Island, in which a statute, substantially correspond- 
 ing to our own, was held unconstitutional, as impairing the 
 right to trial by jury. The respect due to a decision of the 
 highest court of a neighboring State, and the ability of the 
 argument 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. 
 
 * Doyle v. Doyle, 66 N. H. 567; Perkins v. Scott, 57 N. H. 55. 
 
 » 57 N. H. 334. 
 
RULE 118.] GENERAL RULES AS TO PRESUMPTIONS. 569 
 
 us in overturning the law of this Comrnonwealt , as estab- 
 lished, upon what appears to us to be firm foundations, by 
 the practice of more than half a century." 
 
 RULE 118. — A presumption must be based upon a fact,i 
 and not upon inference op upon another presump- 
 tion. 2 
 
 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- 
 resentations made to A. inducing him to purchase the stock. It can not 
 be presumed that A. saw these articles and was induced to purchase 
 relying on the statements therein contained. 3 
 
 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. 1 
 
 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. 5 
 
 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 
 have been renewed or premiums paid. This can not be presumed. 6 
 
 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 v. Helton, 26 Vt. 588 (1S54) ; 
 Brunswick v. McKcan, i Me. 508 (1827) ; Ellis v. Ellis, 58 Iowa, 720 (1882) . 
 
 « Douglass v. Mitchell, 35 Pa. St. 440 (1860). "Presumptions must always rest 
 upon acknowledged or well established facts, and not upon presumptions." Eich 
 mond v. Aiken, 25 Vt. 326 (1853). 
 
 » McAleer v. McMurray, 58 Pa. St. 126 (1868). 
 
 « People v. Hessing, 28 111. 410 (1862). 
 
 6 Pennington v. Tell, 11 Ark. 236 (1850) ; and see U. S. v. Ross, 92 IT. S. 283 (1875). 
 
 ° Manning v. Insurance Co., 100 U. S. 693 (1879) ; Wheelton v. Hardest?, 8 El. & 
 Bl. 232 (1857). 
 
570 PRESUMPTIVE EVIDENCE. [RULE 118. 
 
 the line are 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. 2 
 
 "Not 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 — 
 amongst 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 just 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 (13S0). 
 
 2 Danley v. Eeotor, 10 Ark. 211; 50 Am. Deo. 242 (1849), 
 
RULE 118.] GENERAL RULES AS TO PRESUMPTIONS. 571 
 
 the grand jury heard evidence or acted upon the accusation 
 against him. The 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 presumption 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 IV. 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 plaintiff, 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. Nor is there 
 any presumption of its payment upon which a jury can 
 
572 PRESUMPTIVE EVIDENCE. [POJLE 118. 
 
 act. Certainly none until after the lapse of twenty years. 
 Much less can such a presumption arise in regard to the 
 payment 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 iacts proved. 
 Remarking upon this subject in United States v. Ross, 1 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, 2 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. 3 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. 
 
 8 Best on Ev. 95. 
 
 * Douglass v. Mitchell, 35 Pa. St. 410. 
 
RULE 118. J GENERAL RULES AS TO PRESUMPTIONS. 573 
 
 mate fact which was necessary to be proved. What the 
 evidence did prove was, that there were policies in force 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-agents 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 Henrice, 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. 1 
 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 influence the 
 jury and increase the damages. When a fact is established 
 
 Pennsylvania Railroad Co. v. Books, 7 P. F. Smith, 339; Mansfield Coal and Coke 
 Co. i). McEnery, 10 Morris, 185. 
 
574 PRESUMPTIVE EVIDENCE. [RULE 118. 
 
 in a cause by evidence we may properly be allowed to draw 
 tberefrom 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 
 negligence 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. Mitchell's Executors: 1 ' 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 neg- 
 ligence." 
 
 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 
 
 l 11 Casey, 413. 
 
RULE 118.] GENERAL RULES AS TO PRESUMPTIONS. 575 
 
 positively to have been present at the time of the sale no 
 presumption of fraud arises which 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 third person who is pi - esent when property to which he has 
 claim, is offered for sale, and who 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 he 
 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 affected 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." 
 
576 PRESUMPTIVE EVIDENCE. [EULE 120. 
 
 RULE 119. — A presumption can not contradict facts or 
 overcome facts proved. 
 
 "They have no place for consideration when the evi- 
 dence is disclosed or the averment is made. When, there- 
 fore, 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 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 theservice 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." 1 
 
 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. 
 
 In Graves v. Colwell 2 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. Deo. 627 (1846); Van Burenv* 
 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." Hunt v. Hunt, 3 Mete. 175; 37 Am. Deo. 130 (1811). 
 
 2 90111. 615(1878). 
 
RULE 120. J GENERAL RULES AS TO PRESUMPTIONS. 577 
 
 tion of law that the father and not the son was intended by 
 the deed from French. 1 It then devolved on defendants to 
 introduce evidence sufficient to rebut this legal presump- 
 tion, aud, 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 weighed 
 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 
 
 i Lepiot v. Browne, 6 Mod. Rep. 198 ; Kincaid v. Howe, 10 Mass. 203 ; Padgett v. 
 Lawrence, 10 Paige, 170; State v. Vittum,9 N. H. 519; 2 Wharton's Ev., sec. 1273. 
 
 37 
 
578 PRESUMPTIVE EVIDENCE. [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. Eegarded in its evidential aspect, a given presump- 
 tion of law may have either more or less of probative 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 
 logical 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." 
 
RULE 121.] GENERAL RULES AS TO PRESUMPTIONS. 579 
 
 RULE 121. — And a presumption is neither continuous 
 (A) nor retroactive (B). 
 
 Illustrations. 
 
 A. 
 
 I. A. brings an action against B. for enticing his minor son to enlist 
 in tlie army. The question is as to the measure of damages, whether A. 
 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 latter, as the law can not presume 
 that the war will continue to exist for three years or for any period. 1 
 
 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 
 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 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 v. Gray, 34 How. Pr. 450 (1866). 
 
 2 Strong v. Strong, 1 Abb. Pr. (N. s.) 238 (1865.) 
 
580 PRESUMPTIVE EVIDENCE. [RULE 121. 
 
 basis of their judgment. 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 writings. 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 1860 she was known as Mrs. D. There is no presump- 
 tion that she was married in 1864. 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 
 twenty-five 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 corrmission is issued to Texas ; depo- 
 sitions are taken before one B. on June 5, 1848; and it is officially certi- 
 fied on June 29th that B. is a justice of the peace. There isno presump- 
 tion from this that B. held that office on June 5th. 9 
 
 IV. A. made a contract in 18G0. In 1864 he was insane. There is 
 no presumption that he was insane in I860. 4 
 
 1 Erskine v. Davis, 25 111. 251 (1861). 
 
 * Erskine ti. Davis, 25 111. 251 (1861). 
 
 * Barreli v. Lytle, 4 La. Ann. 557 (1849). 
 
 * Taylor v. Cresswell, 45 Md. 422. 
 
EULE 146.] GENERAL RULES AS TO PRESUMPTIONS . 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. 1 
 
 " 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 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." 2 
 
 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 party contracted the relationship within a few days be- 
 fore the trial." 
 
 Murdoch v. State. 68 Ala. 567 (18S1). 
 * Wright v Orient Ins. Co., 6 Bosw. 270 (1860) ; 1 Arnould on Ins. 6S6, sec. 255. 
 
582 PKESUMPTIVE EVIDENCE. [EULE 122. 
 
 RULE 122. — In the case of conflicting presumptions the 
 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 
 (P) ; the presumption of knowledge of the law is 
 stronger than, and will prevail over, the presumption 
 of innocence (Gr), and the presumption of sanity is 
 stronger than, and will prevail over, the presumption. 
 of innocence (H). 
 
 Illustrations. 
 
 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. 1 
 
 la 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 
 
 l Potter i>. Titoomb, 7 Me. 302 (1831). 
 
RULE 122.] GENERAL RULES AS TO PRESUMPTIONS. 583 
 
 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 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 be presumed ; they must be proved." 
 
 "Nothing can be clearer than this," says Mr. Justice 
 Heath in an old case, 1 " 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 and 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. 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. 3 
 
 In easel, 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 
 
 1 Jayne v. Price, B Taunt. 326 (1811). . 
 
 2 King i>. Inhabitants of Gloucestershire, 2 Barn. &Ald. 386 (1819); Lockhartu. 
 White, 18 Tex. 102 (1856) ; Sharp v. Johnson, 22 Ark. 79 (1860) ; Greensborough v. 
 Underhill, 12 Vt. 60* (1839); Cameron v. State, 14 Ala. 646; 48 Am. Dec. Ill (1848); 
 Chapman v. Cooper, 5 Rich. (L.) 452 (1852);Tates ». Houston, 3 Tex. 442 (1848); 
 People v. Feilen, 58 Cal. 218 (1881) ; Hull v. State, 7 Tex. App. 593 (1880) ; Murray 
 v. Murray, 6 Ore. 18 (1876). 
 
 « Breiden v. Faff, 12 S. & R. (Pa.) 430 (1825). 
 
584 PRESUMPTIVE EVIDENCE. [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 sufficient. In that case, W. must have been 
 proved to have been alive at the time of the second mar- 
 riage. 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." x 
 
 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- 
 
 l The case which is often cited in connection with King v. Inhabitants of Glou- 
 cestershire, 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- 
 sumption 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 wife was shown to be alive and the date of the 
 second marriage. And Bee Lapsley v. Grierson, 1 H. L. Cas. 500 (1818). In Tates o. 
 Houston, 3 Tex. 433 (1848), where four years had elapsed since the former wife had 
 been heard from, it was held that her deuth would be presumed to validate a subse- 
 quent marriage. And see Lockhart v. W hite, IS Tex. 102 (1856). In Wilkie v. Collins, 
 48 Mies. '106 (1873), a husband left his home in Mississippi on October 30, 1859, and 
 went to Louisiana on business, where he was last heard from by letter to his wife, 
 November 30, 1859, announcing that he was then sick in bed, and would return as 
 soon as he was able to travel. He was of habitual delicate health, and hiB domestic 
 relations had always been most agreeable. It was the belief of his family that he 
 was dead, and on December 22, 1861, his wife married again. It was held that the 
 husband would be presumed to have been dead at that time. And see Chapman v. 
 Cooper, 6 Rich. (S. C.) L. 452 (1852). 
 
EULE 122. J GENERAL RULES AS TO PRESUMPTIONS. 585 
 
 wards was alive and 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 mar- 
 ried in Germany to another man. It will be presumed that the previous 
 marriage has been dissolved by death or divorce. 2 
 
 II. A. threatens to kill B.; some time after, B. kills A. There is no 
 presumption that A.'s intention continued to that time. 8 
 
 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. 1 
 
 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. 5 
 
 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 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 benefit of the favorable presumption that the 
 first marriage had been dissolved by a divorce." 
 
 1 Kelley ». Drew, IS Allen, 107 (1866). 
 
 2 Klein v. Landman, 29 Mo. 259 (1860). 
 « State o. Brown, 64 Mo. 367 (1877). 
 
 * Patterson v. S ate, 21 Ala. 671 (1852). 
 6 Powell v. Knox, 16 Ala. 634 (1849). 
 
586 PRESUMPTIVE EVIDENCE. [EULE 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. Eeld, 
 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. 2 
 
 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 perferred. In such a case, having originally 
 elected the criminal in preference to the lawful relation- 
 ship, they must be presumed to have continued therein 
 until some change of intention and wishes is affirmatively 
 shown. 3 This distinction renders such cases as those in the 
 above illustration completely in harmony with cases like 
 Wilkinson v. Payne, 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, 53 Miss. 46 (1876). 
 » Floyd v. Calvert, 53 Miss. 46 (1876). 
 « 4 T. E. 468. 
 
Rule 122. J geneeal eules as to feesumftions. 587 
 
 only three weeks after he attained a legal age to marry, 
 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 presump- 
 tion was in favor of innocence. 
 
 E. 
 
 I. A presumption of marriage arises from cohabitation; M. and Y. 
 were proved to have lived together and cohabited ; Y. afterwards mar- 
 ried S. The presumption that Y. did not commit bigamy prevails over 
 he presumption that M. and Y. were married. 1 
 
 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. 2 
 
 F. 
 
 I. W. was indicted for the seduction of B. under a statute punishing 
 the seduction of " any unmarried female of previous chaste character." 
 The previous chaste character of E. will not be presumed. 3 
 
 " 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 v. Wardell, 4 N. T. 330 (1850) ; Case v. Case, 17 Oal. 598 (1861). 
 
 2 Armstrong v. Hodges, 2 B. Mon. (Ky.) 70 (1841). 
 
 8 West v. State, 1 Wis. 209 (1853). But see State v. Wells, 48 Iowa, 671 (1878). In 
 Slocum ». People, 90 HI. 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 
 Baid : " The presumption of law is that her previous life and conversation were 
 chaste, and the onut was upon the defendant to show otherwise." But the case 
 shows that sbo was only eighteen years old, that previous to her seduction she had 
 resided with her parents, went to BChool 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 the court was therefore unnecessary, as there was 
 proof enough to rebut the presumption. 
 
588 PRESUMPTIVE EVIDENCE. [EDLE 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 which 
 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 tc 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 non 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 charged. 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. J GENERAL RULES AS TO PRESUMPTIONS. 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 affords 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 affords 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. 1 Ignorance of the law excuses no 
 one and can not be pleaded as an 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 wishes to be excused on the ground of 
 non-responsibility, he must prove it. 2 
 
 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 would 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 
 
 i Mayor of Baltimore v. Norman, 4 Md.352 (1853). 
 2 Cunningham v. State, 56 Miss. 269 (1879). 
 
590 PRESUMPTIVE EVIDENCE. EULE 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, Survivorship. 
 To prove that the crime was not accidental, separate crime may be 
 shown, 488. 
 Reasons, 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, 390. 
 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, 394-396. 
 
 4. Or is suspicious on its face, 389. 
 
 Illustrations, 396. 
 
 B. Or execution of instrument is denied under oath, 389. 
 
 Illustrations, 397. 
 
 Reasons, 397-400. 
 
 (691) 
 
592 INDEX. 
 
 ARSON. 
 See Intent. 
 
 ASSENT. 
 
 Presumption that person bears statement in his presence, 279. 
 
 ATTEMPT. 
 
 Former attempt raises presumption of guilt, 607. 
 Illustrations, 608. 
 
 ATTORNEY. 
 See Official Acts. 
 
 AUTHORITY. 
 See Officers; Agency. 
 
 BANKING. 
 See Couhse 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 bunajide 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. 593 
 
 CHATTELS — Continued. 
 Of note, 420. 
 Of calf, 420. 
 
 Shipping property by carrier, 420. 
 Eeasons, 420-429. 
 
 CIRCUMSTANCES, CHANGE IN. > 
 See Habits. 
 
 COMMON LAW. 
 See Foreigk Laws. 
 
 CONDUCT OF PRISONER. 
 See, also, Fear; Flight; Escape; Silence; Spoliation. 
 False or contradictory accounts by prisoner, 530. 
 Illustrations, 530. 
 Reasons, 631-533. 
 
 CONFLICT OF LAWS. 
 See Foreign Laws. 
 
 CONFLICTING PRESUMPTIONS. 
 Of payment and continuance, 582. 
 
 Illustrations, 582. 
 Of innocence and payment, 582. 
 Illustrations, 582. 
 Reasons, 582. 
 Of innocence and continuance of life, 682. 
 Illustrations, 583. 
 Reasons, 584. 
 Of innocence and continuance of things, 582. 
 Illustrations, 585. 
 Reasons, 585. 
 Of innocence and marriage, 682. 
 
 Illustrations, 587. 
 Of innocence and chastity, 682, 
 Illustrations, 587. 
 Reasons, 587. 
 Of knowledge of law and innocence, 582. 
 
 Illustrations, 589. 
 Of sanity and innocence, 582. 
 Illustrations, 689. 
 
 CONTENTS OF WRITING. 
 See Knowledge. 
 
 CONTINUANCE. 
 See, also, Life; Death. 
 Continuance of things, presumption of, 163. 
 
 Possession or ownership of property presumed to continue, 163. 
 j Reasons, 163. 
 
 88 
 
594 
 
 IXDEX. 
 
 CONTINUANCE — Continued. 
 
 Non-possession or loss of property presumed to continue, 153, 
 164. 
 Illustrations, 164. 
 Debts presumed to continue, 163, 165. 
 Illustrations, 165. 
 Reasons, 165. 
 Other cases of continuance, 166. 
 
 That goods in carrier's hands remain in good order, 166. 
 That vessel continues seaworthy, 166. 
 That party continues to possess money, 166. 
 That decree in chancery continues in force, 167. 
 That custom continues in force, 167. 
 Reasons, 167-172. 
 Domicil, residence or non-residenee 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 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, 176. 
 That public treaty is still in force, 176. 
 That same state of government still exists, 176. 
 That corporation still exists, 176. 
 That illicit intercourse continues between parties, 176. 
 That person's veracity is still good, 176. 
 That woman continues unmarried, 176. 
 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 office, 177. 
 Reasons, 177, 178. 
 Sanity or insanity presumed to continue, 179. 
 Unless temporary, 179. 
 
INDEX. 595 
 
 CONTINUANCE —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 
 
 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. 
 Eeasons, 183-184. 
 But person presumed to follow his habit, 184. 
 Illustrations, 184-186. 
 Eeasons, 186-187. 
 Future continuance not presumed, 187. 
 Illustrations, 188. 
 Eeasons, 188. 
 Admission made does not extend in future, 189. 
 Illustrations, 189. 
 Eeasons, 189-190. 
 Presumption is not retrospective, 190. 
 Illustrations, 190. 
 Eeasons, 190-191. 
 Presumption of continuance weaker than presumption of innocence, 
 191. 
 
 CONTRACTS. 
 See Course of Business; Documents; Services. 
 
 COEPOEATION. 
 See Officers. 
 
 COUESE OF BUSINESS. 
 See Services; Negotiable Paper; Dates; Documents. 
 Business acts, regularity of presumed, 6.7 
 That written agreement was signed, 67. 
 That partners are interested in equal shares, 67. 
 That letters are sent in course of business, 67. 
 That persons doing business together are partners, 68. 
 
596 INDEX. 
 
 COUESE OP 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^ 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, 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, 68. 
 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, 69. 
 That receipt is given for goods received, 70. 
 That account kept by customer is correct, 70. 
 That person remaining 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. 
 Eeasons 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. 
 
 COUESE OF NATUEE. 
 See Nature, Course of. 
 
 COUETS. 
 See Judicial Acts. 
 
 COVENANTS. 
 
 Presumed performed after twenty years, 308. 
 Illustrations, 320. 
 , Eeasons, 321. 
 
 CEIMINAL LAW". 
 See Innocence (Criminal Cases) ; Guilt. 
 
INDEX. 597 
 
 CUSTOMS OF TRADE. 
 See Knowledge. 
 
 DAMAGES. 
 See Witnesses. 
 
 DATES. 
 
 Dates, presumed to be correct, 89. 
 
 That letters were written on their date, 89. 
 
 That 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, 90. 
 
 That action was commenced on day of date of writ, 90. 
 
 No presumption as to letter between husband 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 ; Survivorship. 
 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, 213-214. 
 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 relatives and 
 strangers, 215. 
 Illustrations, 215. 
 Reasons, 215 
 What is meant by "not being heard of," 216. 
 Illustrations, 216. 
 Eeasons, 216-221. 
 What is absentee's "residence, home or domicil," 222. 
 Illustrations, 222. 
 Eeasons, 222. 
 Presumption arises that party has died within seven years — 
 
 1. When last heard of he was in desperate health, 222. 
 
 Illustrations, 222. 
 Eeasons, 223. 
 
 2. Or within that time he embarked on vessel not since heard of 
 of and overdue, 223. 
 
 Illustrations, 223, 224. 
 Reasons, 225-230. 
 
 3. 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, 163, 165, 
 Illustrations, 165. 
 Eeasons, 165. 
 
 DEEDS —ALTERATIONS. 
 See Documents; Bea.l Property. 
 
 DEFINITIONS. 
 
 Definition of " presumption," 556. 
 Definition of "presumption of law," 556. 
 Definition of presumption of fact, 556. 
 " Illustrations, 559-560. 
 
 Eeasons, 560-569. 
 
INDEX. 599 
 
 DESTRUCTION OF EVIDENCE. 
 See Spoliation. 
 
 DISCHARGE OP OBLIGATIONS. 
 See Payment. 
 
 DOCUMENTS. 
 
 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. 
 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 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, 85-88. 
 
 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. 
 Miter when it is for another crime, 537, 
 Illustrations, 539. 
 
 EVIDENCE. 
 See Witnesses. 
 
 FABRICATION OP EVIDENCE. 
 See Spoliation. 
 
 FAILURE TO TESTIFY 
 See Witness. 
 
 FALSIFICATION OP EVIDENCE. 
 See Spoliation. 
 
600 INDEX. 
 
 FEAR. 
 
 Fear raises presumption of guilt, 534. 
 Illustrations, 534. 
 
 Reasons, 634-536. , 
 
 Miter when fear may be on account of another crime, 534. 
 Illustrations, 636. 
 
 FATHER AND SON. 
 See Identity; Survivorship. 
 
 FLIGHT. 
 
 Flight raises presumption of guilt, 537. 
 Illustrations, 537. 
 Seasons, 637. 
 
 FOREIGN LAWS. 
 
 Presumption as to, 358. 
 
 Law of forum presumed to be the law of foreign state, 368. 
 Illustrations, 358-360. 
 Reasons, 360-365. 
 Acts malum in se presumed to be crimes in foreign country, 365. 
 
 Illustrations, 365. 
 No presumption of identity of law as to country not subject to com- 
 mon law, 366. 
 Illustrations, 366. 
 
 Reasons, 366-369. 
 Or tribe or nation uncivilized, 366. 
 Illustrations, 369. 
 Constructed of an adopted statute, 369. 
 
 Hlustrations, 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. 
 
 That 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. 601 
 
 FRAUD — Continued. 
 
 That administrator has made proper return, 440. 
 Fraud may be inferred from circumstances, 100. 
 Eeasons for the rule, 99, 440, 442. 
 
 FRUITS OF CRIME. 
 See Habits. 
 Possession of fruits of crime raises presumption of guilt, 515. 
 Illustrations, S16. 
 Reasons, 616. 
 Recent possession. in larceny or robbery, 518. 
 Illustrations, 518. 
 
 Reasons, 519-622. 
 Reasonable explanation of possession overthrows presumption, 
 622. 
 Illustrations, 522. 
 Reasons, 522. 
 Unless explanation inconsistent, 622. 
 Illustrations, 523. 
 Reasons, 523. 
 What is or is not "recent," 524. 
 Kind of property a test, 524. 
 Illustrations, 525. 
 Reasons, 626-629. 
 
 GIFT. 
 See Intent. 
 
 GUILT. 
 
 Presumptions of, 493-654. 
 
 Motive, 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, 505. 
 Opportunity raises presumption of guilt, 506 
 Illustrations, 506. 
 
 Unless another had better opportunity, 506. 
 Illustrations, 506. 
 Former attempt raises presumption, 507. 
 Illustrations, 607. 
 Reasons, 608. 
 Preparations raise presumption, 508. 
 To accomplish crime, 608. 
 Illustrations, 508. 
 
602 INDEX. 
 
 GUILT — Continued. 
 
 To prevent discovery, 508 
 
 Illustrations, 509. 
 To aid escape, 508. 
 
 Illustrations, 509. 
 To avert suspicion, 508. 
 Illustrations, 509. 
 Seasons, 510. 
 AUter where preparations innocent, 610. 
 
 Illustrations, 510. 
 Or for another crime, 510. 
 
 Illustrations, 511. 
 Or crime frustrated or abandoned, 510. 
 Illustrations, 511. 
 Threats raise presumption of guilt, 511. 
 Illustrations, oil. 
 Keasons, 512. 
 Miter when another may have executed them, 512. 
 Illustrations, 513. 
 Possession of means of committing crime raises presumption, 
 513. 
 Illustrations, 513. 
 Eeasons, 514. 
 Varies as to occupation, character, or sex of prisoner, 513. 
 Illustrations, 515. 
 Possession of fruits of crime raises presumption, 515. ' 
 Illustrations, 516. 
 Reasons, 516. 
 Eecent possession in larceny or robbery, 518. 
 Illustrations, 518. 
 
 Eeasons, 519-522. 
 Eeasonable explanation of possession overthrows presump- 
 tion, 522. 
 
 Illustrations, 522. 
 Eeasons, 522. 
 Unless explanation inconsistent, 522. 
 Illustrations, 523. 
 Eeasons, 523. 
 What is or is not "recent," 524. 
 Kind of property a test, 524. 
 Illustrations, 525. 
 Eeasons, 526-529. 
 Change in life and circumstances of prisoner, 629. 
 
 Illustrations, 529. 
 False or contradictory accounts by prisoner, 630. 
 Illustrations, 530. 
 Eeasons, 531-533. 
 
INDEX. 603 
 
 GUILT — Continued. 
 
 Attempt to thwart investigation, 533. 
 
 Illustrations, 633. 
 Fear raises presumption of guilt, 534. 
 Illustrations, 634. 
 
 Eeasons, 634-536. 
 Aliter when fear may be on account of another crime, 534. 
 Illustrations, 536. 
 Flight raises presumption of guilt, 637. 
 Illustrations, 537. 
 Eeasons, 537. 
 Attempts to escape raise presumption, 537. 
 Illustrations, 537. 
 Eeasons, 538. 
 Aliter when it is for another crime, 537. 
 Illustrations, 539. 
 Destruction of evidence raises presumption, 539. 
 
 Illustrations, 541. 
 Concealment of evidence, 539. 
 
 Illustrations, 541. 
 Fabrication of evidence, 539. 
 Illustrations, 542. 
 Eeasons, 643. 
 Silence when interrogated raises presumption, 645. 
 Illustrations, 545. 
 Eeasons, 546. 
 Unless in judicial interrogation, 545. 
 Illustrations, 549. 
 Eeasons, 549. 
 Failure to produce evidence raises presumption, 549. 
 Illustrations, 551. 
 Eeasons, 651. 
 Prisoner declining to testify in his own behalf, 651. 
 
 HABITS. 
 See, also, Character. 
 Change in life and circumstances of prisoner raises presumption of 
 guilt, 529. 
 Illustrations, 529. 
 
 HANDWEITING. 
 See Alterations. 
 
 HUSBAND AND WIFE. 
 
 Presumed coercion of wife, 279. 
 
 That husband is head of family, 279. 
 
 That deed to wife is in custody of husband, 279. 
 
 Presumption as to child bearing, 302. 
 
604 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. 
 i. 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. 
 Miter as to mother and daughter, 260. 
 Identity of things presumed from circumstances, 261. 
 Illustrations, 261 . 
 
 IMPLEMENTS OP 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. 
 
INDEX. 605 
 
 INNOCENCE (Civil Cases). 
 See, also, Fraud ; Negligence. 
 Innocence in civil cases presumed, 93. 
 
 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, 96. 
 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 wtth crime presumed, 433. 
 
 That two of different sexes living together and cohabiting are 
 married, 433. 
 Miter 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 office has qualified, 436. 
 That sworn account is true, 436. 
 That prosecution is for cause and not malicious, 436. 
 That statute is not violated, 436. 
 Other illustrations, 438. 
 Reasons, 437-439. 
 Good character presumed, 442. 
 
 Presumption of innocence not taken away by 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. 
 
606 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. 
 Eeasons, 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, 459. 
 Presumption of innocence strengthened by relation of parties, 460. 
 
 As that murdered person is wife of suspected murderer, 460. 
 But presumption of innocence overcome by finding of indictment 
 except for purpose of trial, 460. , 
 Illustration, 460. 
 Qualification to do act presumed, 461. 
 Therefore these presumptions arise — 
 
 That parties living together as husband and wife are mar- 
 ried, 461. 
 That consent to sale of liquor to prohibited party has been 
 
 given, 461. 
 That party has consent to do act requiring consent, 461. 
 That officer made report required by statute, 461. 
 Reasons, 462-465. 
 Aliter where proof is peculiarly in possession of defendant, 461. 
 As that bailiff has public license to do act, 465 
 Other illustrations, 465. 
 Reasons, 465. 
 Even though it may involve defendant in proving his innocence, 
 461. 
 Illustration, 466. 
 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. C07 
 
 INNOCENCE {Criminal Casses) —Continued. 
 
 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, r 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 kind 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 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, 486. 
 To prove knowledge or intent, another crime may be shown, 487. 
 Illustrations, 487. 
 • Reasons, 487,488. 
 
 To prove motive, another crime may be shown, 4S7. 
 
 Illustrations, 488. 
 To prove that crime was not accidental, separate crime may be 
 shown, 488. 
 Illustrations, 489. 
 Reasons, 490. 
 lies gestae 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 Solvency; Gouesb as Business. 
 
608 
 
 INDEX. 
 
 INTENT. 
 
 Presumptions of, 262. 
 
 Party presumed to intend natural consequences of his acts, 2S2. 
 That libeller intended to injure libelled, 262. 
 That party selling bad bread intended it to be eaten, 262. 
 . That party conveying to creditor intended to prefer him, 
 
 262. 
 That person stopping in house of ill-fame has intercourse, 
 
 262. 
 That person removes to anotherj;State to obtain divorce, 
 
 263. 
 That person preferring creditor intended to, 263. 
 Reasons, 263-261. 
 Party presumed to intend legal consequences of his acts, 262. 
 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, 264. 
 That person giving note intends it to be paid in legal cur- 
 rency, 264. 
 Reasons, 265-266. 
 Act criminal per se presumed to be criminally intended, 266. 
 Illustrations, 266. 
 
 Reasons, 266-271. 
 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, 276. 
 Illustrations, 276, 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. 
 
INDEX. 609 
 
 INTEREST, ACTS IN ONE'S — Continued. 
 
 That person accepts estates devised to him, 303. 
 
 Or conveyed to him, 303. 
 That charter is accepted by grantee, 304. 
 
 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 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. 
 
 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, 81. 
 Jurisdiction not presumed where proceedings are not according to 
 common law, 27. 
 Illustrations, 33. 
 39 
 
610 INDEX. 
 
 JUDICIAL ACTS — Continued. 
 
 Eegularity of proceedings of courts of general powers presumed, 34, 
 
 Decisions in the different States, 34-37. 
 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. 
 
 Seasons for rulings, 41-43. 
 Eegularity 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. 
 Seasons 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. 611 
 
 JURISDICTION — Continued. 
 
 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. 
 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, 6. 
 That admissions by party are made with knowledge of legax 
 
 rights, 6. 
 That persons signing note "as trustees" intend to be per- 
 sonally bound, 6. 
 Promise to pay enforced, though made under mistake of law 
 
 as to liability, 6. 
 , Other illustrations, 7. 
 Keasons, 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. 
 Eeasons, 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. 
 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. 
 Illustrations, 23. 
 
612 
 
 INDEX. 
 
 KNOWLEDGE —Continued. 
 
 No presumption that party not called as witness has knowledge 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. 
 , Seasons, 487, 488. 
 
 LAPSE OF TIME. 
 See Payment ; Ejbal Pkopekty. 
 
 LARCENY. 
 See Recent Possession. 
 
 LAW AND PACT GENERALLY, PRESUMPTIONS OP. 
 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 legaj 
 
 rights, 6. 
 That persons signing note "as trustees" intend 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, 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. 
 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. 613 
 
 LAW AND FACT GENERALLY, PRESUMPTIONS OF— Continued. 
 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. 
 
 Illustrations, 23. 
 No presumption that party not called as witness has knowledge of 
 facts, 23. 
 Illustrations, 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, 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. 
 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, 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 
 
614 INDEX. 
 
 LAW AND FACT -GENERALLY, 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. 
 
 Reasons for rulings, 41-43. 
 Regularity of proceedings of inferior courts presumed where 
 jurisdiction 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. 
 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, 60. 
 
 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, 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, 5&. 
 
 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. 
 
 That proclamation was posted by order of commander, 56. 
 
INDEX. G15 
 
 LAW AND PACT GENERALLY, PRESUMPTIONS OF — Continued. 
 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, 57. 
 That administrator has made proper settlement, 57. 
 That writ was 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, 58. 
 That taxes were paid by testator, 58. 
 Reasons for the rulings, 59. 
 Legislature presumed to have acted properly, 58. 
 That bill was passed constitutionally, 58. 
 That verbal changes in bill were authorized, 68. 
 That Legislature intended to omit words in statute, 68. 
 Statute presumed to be constitutional, 58. 
 That municipal ordinance is regular, 58. 
 Private officers presumed to be properly appointed and to do 
 their duty, 60. 
 That cashier's bond was approved, 60. 
 That corporation president had power to indorse note, 60. 
 That officers of corporation were properly appointed, 60. 
 That attorneys for State had authority of governor, 61. 
 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, 61. 
 That quorum of members were present at meeting, 61. 
 Reasons for the rulings, 61-66. 
 Business acts, regularity of presumed, 67. 
 That written agreement was signed, 67. 
 That partners are interested in equal shares, 67. 
 That letters are sent iu course of business, 67. 
 That persons doing business together are partners, 68. 
 That party waives defects in goods by keeping them, 68. 
 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, 68. 
 That a person promises to pay borrowed money, 68. 
 That a person has funds to pay draft on himself which he 
 
 accepts, 68. 
 That a person is engaged by the month, 68. 
 That freight earned belongs to owners of vessel, 68. 
 That goods charged were delivered, 68. 
 
616 INDEX. 
 
 LAW AND FACT GENERALLY, PRESUMPTIONS OP — Continued. 
 
 That one selling to another on credit thinks him solvent, 69. 
 
 That a partnership is solvent, 68. 
 
 Of insolvency 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, 09. 
 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, 69. 
 That receipt is given for goods received, 70. 
 That account kept by customer is correct, 70. 
 That person remaining 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. 
 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. 617 
 
 LAW AND FACT GENERALLY, PRESUMPTIONS OF — Continued, 
 
 That deeds were delivered in proper order, 83, 84. 
 
 That mortgage was properly executed, 8i. 
 
 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 proper order, 86. 
 
 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. 
 bates, presumed to be correct, 89. 
 
 That letters were written on their date, 89. 
 
 That 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, 90. 
 
 That action 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, 92. 
 
 As that party was in city of date at that time, 92. 
 Innocence in civil cases presumed, 93. 
 
 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. 
 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. 
 Reasons for the rule, 99. 
 Fraud may be inferred from circumstances, 100. 
 
 That goods were not sold contrary to law, 101. 
 
 That contract is not usurious, 102. 
 
 That act entailing penalty has not been done, 102. 
 
618 INDEX. 
 
 LAW AND PACT GENERALLY, PRESUMPTIONS OF— Continued. 
 That seller of liquor has a license, 102. 
 That future tenants will not violate the law, 102. 
 Negligence not presumed, 102. 
 
 That fire was notnegligent, 102. 
 That vessel was seaworthy, 102. 
 AUter that boiler which exploded was defective, 102. 
 That Wast was not properly covered, 103. 
 That animal on railroad track was negligently killed, 103. 
 Marriage is presumed, 104. 
 Parentage is presumed, 105. 
 
 That marriage ceremony was properly performed, 106. 
 Presumption that every person is legitimate, 107. 
 
 Illustrations, 109. 
 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 insufficient, 115. 
 Proof of access not conclusive, 115. 
 Conduct of supposed parent towards child relevant, 116. 
 That wife lived in open adultery relevant, 117. 
 Presumption holds where parties are living apart by consent, 
 117. 
 AUter when 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, presumption that it was of the 
 
 smallest denomination, 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. 
 
 Pour out of five attorneys of a party deny a fact, presump- 
 tion that the other could not, 123. 
 Reasons, J 23-134. 
 
INDEX. 619 
 
 LAW AND FACT GENERALLY, PRESUMPTIONS OP— Continued. 
 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 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 bond 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. 
 Palsityof 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 officers of corporations, 148. 
 Destruction of vouchers and invoices by partner, 149. 
 
 Reasons, 148-149. 
 Presumptions in international law, 150-151. 
 Spoilation alone may defeat claim but can not sustain one, 162, 153. 
 Presumption against spoilator does not arise. 
 
 1. Where documents otherwise proved, 154. 
 
 Illustrations, 154. 
 
 2. Or spoilation open and for cause, 154. 
 
 Illustrations, 154. 
 Does not extend beyond thing taken or suppressed, 155. 
 Presumption is not conclusive, 156. 
 Destruction voluntarily of document precludes spoliator from giving 
 secondary evidence, 157. 
 
620 
 
 INDEX. 
 
 LAW AND FACT GENERALLY, 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, 160. 
 Continuance of things, presumption of, 163. 
 
 Possession or ownership of property presumed to continue, 163. 
 
 Reasons, 163. 
 Non-possession or loss of property presumed to continue, 153, 
 164. 
 Illustrations, 164. 
 Debts presumed to continue, 163, 165. 
 Illustrations, 165. 
 Reasons, 165. 
 Other cases of continuance, 166. 
 
 That goods in carrier's hands remain in good order, 166. 
 That vessel continues seaworthy, 166. 
 That party continues to possess money, 166. 
 That decree in chancery continues in force, 167. 
 That custom continues in force, 167. 
 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 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, 176. 
 
 That public treaty is still in force, 176. 
 
 That same state of government still exists, 176. 
 
 That corporation still exists, 176. 
 
 That illicit intercourse continues between parties, 176. 
 
INDEX. 621 
 
 LAW AND FACT GENERALLY, PRESUMPTIONS OF — Continued. 
 That person's veracity is still good, 176. 
 That woman continues unmarried, 176. 
 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 office, 177. 
 Reasons, 177, 178. 
 Sanity or insanity presumed to continue, 179. 
 
 Unless temporary, 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 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 futuro, 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. 
 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 OE — 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, 213-214. 
 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 hoar from him " include relatives and 
 strangers, 215. 
 Illustrations, 215. 
 Reasons, 215. 
 What is meant by " not being heard of," 216. 
 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, 230. 
 
INDEX. 623 
 
 LAW AND FACT GENEEALLY, PEE SUMPTIONS 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 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. 
 
 Eeasons, 237-239. 
 
 2. Where he is mentioned as alive in subsequent judicial pro- 
 ceedings, 237. 
 
 Illustrations, 239. 
 Survivorship, presumption of, 240. 
 
 No presumption of survivorship as to victims of common calam- 
 ity, 240. 
 Illustrations, 241-243. 
 Eeasons, 243-246. 
 Exceptions, 246. 
 Illustrations, 246, 247. 
 Identity, presumption of, 248. 
 
 Identity of name raises presumption of identity of person — 
 
 1. Where there is similarity of residence, 24S. 
 
 Illustrations, 250. 
 
 2. When there is similarity of trade, 248. 
 
 Illustrations, 250. 
 Eeasons, 251. 
 
 3. When there is similarity of circumstances, 248. 
 
 Illustrations, 250. 
 
 4. Where name is an unusual one, 248. 
 
 Illustrations, 252. 
 
 Eeasons, 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. 
 Eeasons, 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. 
 Elustrations, 257. 
 
624 INDEX. 
 
 LAW AND FACT GENERALLY, PRESUMPTIONS OP — Continued. 
 
 Pather and son or two persons of same name, presumption that 
 name means eldest, 258. 
 Illustrations, 258. 
 
 Reasons, 259, 260. 
 Miter as to mother and daughter, 260. 
 Identity of things presumed from circumstances, 261. 
 Illustrations, 261. 
 Intent, presumptions of, 2,62. 
 
 Party presumed to intend natural consequences of his acts, 262. 
 That libeller intended to injure libelled, 262. 
 That party selling bad bread intended it to be eaten, 262. 
 That party conveying to creditor intended to prefer him, 
 
 262. 
 That person stopping in house of ill-fame has intercourse, 
 
 262. 
 That person removes to another] State to obtain divorce, 
 
 263. 
 That person preferring creditor intended to, 263. 
 Reasons, 263-264. 
 Party presumed to intend legal consequences of his acts, 262. 
 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, 264. 
 That person giving note intends it to be paid in legal cur- 
 rency, 264. 
 Reasons, 265-266. 
 Act criminal per se presumed to be criminally intended, 266. 
 Illustrations, 266. 
 
 Reasons, 266-271. 
 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, 276. 
 Illustrations, 276, 277. 
 Reasons, 277-278. 
 
INDEX. C25 
 
 LAW AND FACT GENERALLY, PRESUMPTIONS OP — Continued. 
 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 preseuce, 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 on wife's land by husband are a gift 
 
 to her, 280. 
 That wife buys 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. 
 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. 
 
 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, 30i. 
 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, 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. 
 Trust presumed executed after twenty years, 308. 
 Illustrations, 320. 
 
 40 
 
626 INDEX. 
 
 LAW AND PACT GENERALLY, PRESUMPTIONS OP— Continued. 
 Covenant presumed performed after twenty years, 308. 
 Illustrations, 320. 
 Eeasons, 321. 
 Presumption of payment does not arise from less than twenty years, 
 322. 
 Unless in conjunction with other circumstances, 322. 
 Illustrations, 323. 
 Eeasons, 323-327 
 Presumption from lapse of time may be rebutted, 327. 
 Illustrations, 327. 
 
 Eeasons, 327-330. 
 Statute of limitations can not be shortened by lapse of time alone, 
 327. 
 Illustrations, 330. 
 
 Eeasons, 330-332. 
 Presumption of payment may be rebutted, how — 
 
 1. By acknowledgment of debt by debtor, 333. 
 
 Illustrations, 333. 
 
 Eeasons, 334, 336. 
 
 2. By part payment, 333. 
 
 Illustrations, 336. 
 8. By known insolvency of debtor, 333. 
 Illustrations, 836. 
 Eeasons, 337-340. 
 
 4. Or incapacity of debtor, 333. 
 
 Illustrations, 340. 
 
 5. Or by relation of the parties, 333. 
 
 Illustrations, 340. 
 Eeasons, 341. 
 
 6. Or by situation of the parties, 333. 
 
 Illustrations, 342. 
 
 7. Or by intention of the parties, 333. 
 
 Ulustrations, 342. 
 Eeasons, 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. 
 Eeasons, 344-346. 
 
 2. Possession by debtor of obligation, 344. 
 
 Illustrations, 346 
 
 Eeasons, 347-349. 
 
 3. Cancellation of obligation, 344. 
 
 Illustrations, 349. 
 Eeasons, 448-350. 
 
INDEX. 627 
 
 LAW AND FACT GENERALLY, PRESUMPTIONS OP — Continued. 
 i. 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. 
 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, 356. 
 Presumption of payment is stronger than presumption of con- 
 tinuance, 356. 
 But weaker than presumption of innocence, 356. 
 Illustrations, 356. 
 Reasons, 357. 
 Foreign laws, presumption as to, 358. 
 Law of forum presumed to be the law of foreign state, 358. 
 Illustrations, 358-360. 
 Reasons, 360-365. 
 Acts malum in se presumed to be crimes in foreign country, 365. 
 
 Illustrations, 365. 
 No presumption of identity of law as to country not subject to com- 
 mon law, 366. 
 Illustrations, 366. 
 
 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. 
 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 ha^id, 389. 
 Illustrations, 390. 
 Reasons, 390-392. 
 
628 INDEX. 
 
 LAW AND FACT GENERALLY, PRESUMPTIONS OP— Continued. 
 
 2. Or in different ink, 389. 
 
 Illustrations, 393. 
 
 3. Or is in interest of party setting it up, 389. 
 
 Illustrations, 394. 
 Reasons, 394-396. 
 
 4. Or is suspicions on its face, 389. 
 
 Illustrations, 396. 
 
 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 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. 
 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. 
 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. 
 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, PRESUMPTIONS OP — Continued. 
 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. 
 Miter if marriage between them is prohibited, 434. 
 Prom taking thing no presumption of theft, 435. 
 Person marrying again, first husband or wife presumed dead 
 or divorced, 435. 
 v 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 office has qualified, 436. 
 That sworn account is true, 436. 
 That prosecution is for cause and not malicious, 436. 
 That statute is not violated, 436. 
 Other illustrations, 438. 
 Reasons, 437-439. 
 Pruud never presumed, 439. 
 Illustrations, 439. 
 
 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 by 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. 
 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. 
 
630 INDEX. 
 
 LAW AND PACT GENERALLY, PRESUMPTIONS OF — Continued. 
 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, 459. 
 Presumption of innocence strengthened by relation of parties, 460. 
 
 As that murdered person is wife of suspected murderer, 460. 
 But presumption of innocence overcome by finding of indictment 
 except for purpose of trial, 460. 
 Illustration, 460. 
 Qualification to do act presumed, 461. 
 Therefore these presumptions arise — 
 
 That parties living together as husband and wife are mar- 
 ried, 461. 
 That consent to sale of liquor to prohibited party has been 
 
 given, 461. 
 That party has consent to do act requiring consent, 461. 
 That officer made report required by statute, 461. 
 Reasons, 462-465. 
 Aliter where proof is peculiarly in possession of defendant, 461. 
 As that bailiff has public license to do act, 465. 
 Other illustrations, 465. 
 Reasons, 465. 
 Even though it may involve defendant in proving his innocence, 
 461. 
 Illustration, 466. 
 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. 
 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 prime than that charged can not be proved against prisoner, 481 . 
 Illustrations, 481-483. 
 
INDEX. 631 
 
 LAW AND PACT GENEEALLY, PRESUMPTIONS OF — Continued. 
 As that prisoner had tendency to commit crime of kind 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 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. 
 Seasons, 484, 485. 
 Other instances, 486. 
 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. 
 Seasons, 490. 
 Bes gesta may be proved though another crime, 490. 
 Illustrations, 490. 
 
 Reasons, 491, 492. 
 Guilt, presumptions of, 493-554. 
 
 Motive, 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, 505. 
 Opportunity raises presumption of guilt, 506. 
 Illustrations, 506. 
 
632 INDEX. 
 
 LAW AND FACT GENERALLY, PRESUMPTIONS OP — Continued. 
 Unless another had better opportunity, 506. 
 Illustrations, 506. 
 Former attempt raises presumption, 507. 
 Illustrations, 607. 
 Reasons, 508. 
 Preparations raise presumption, 508. 
 To accomplish crime, 508. 
 
 Illustrations, 508. 
 To prevent discovery, 508. 
 
 Illustrations, 509. 
 To aid escape, 608. 
 
 Illustrations, 509. 
 To avert suspicion, 508. 
 Illustrations, 609. 
 Reasons, 510. 
 Miter 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, oil. 
 Reasons, 512. 
 Miter when another may have executed them, 512. 
 Illustrations, 513. 
 Possession of means of committing crime raises presumption, 613. 
 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, 516. 
 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, 622. 
 Illustrations, 623. 
 Reasons, 523. 
 What is or is not "recent," 524. 
 Kind of property a test, 624. 
 
INDEX. 633 
 
 LAW AND FACT GENERALLY, PRESUMPTIONS COT — Continued. 
 Illustrations, 525. 
 Reasons, 626-529. 
 Change in life and circumstances of prisoner, 629. 
 
 Illustrations, 529. 
 False or contradictory accounts by prisoner, 630. 
 Illustrations, 530. 
 Reasons, 531-533. 
 Attempt to thwart investigation, 533. 
 
 Illustrations, 633. 
 Pear raises presumption of guilt, 534. 
 Illustrations, 534. 
 
 Reasons, 634-536. 
 Miter when fear may be on account of another crime, 534. 
 Illustrations, 536. 
 Plight raises presumption of guilt, 537. 
 Illustrations, 637. 
 Reasons, 537. 
 Attempts to escape raise presumption, 537. 
 Illustrations, 637. 
 Reasons, 538. 
 Miter when it is for another crime, 637. 
 Illustrations, 539. 
 Destruction of evidence raises presumption, 639. 
 
 Illustrations, 541. 
 Concealment of evidence, 539. 
 
 Illustrations, 541. 
 Fabrication of evidence, 539. 
 Illustrations, 542. 
 Reasons, 543. 
 Silence when interrogated raises presumption, 645. 
 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, 551. 
 Rules as to presumptions, 556-590. 
 Definition of "presumption," 556. 
 Definition of "presumption of law," 556. 
 Definition of presumption of fact, 556. 
 Illustrations, 559-560. 
 Reasons, 560-569. 
 Presumption must be based on fact and not on inference, 669. 
 Illustrations, 6C9. 
 Reasons, 570-575. 
 
634 INDEX. 
 
 LAW AND FACT GENERALLY, PRESUMPTIONS OP — Continued. 
 Presumption can not contradict facts, 576. 
 
 Illustrations, 576. 
 Presumptions are not continuous, 579. 
 Illustrations, 579. 
 Reasons, 579. 
 Presumptions are not retroactive, 679. 
 Illustrations, 580. 
 Reasons, 581. 
 Conflicting presumptions, 582-590. 
 Of payment and continuance, 582. 
 
 Illustrations, 682. 
 Of innocence and payment, 582. 
 Illustrations, 582. 
 Reasons, 582. 
 Of innocence and. continuance of life, 682. 
 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, 689. 
 
 LAW, KNOWLEDGE OP. 
 See Knowledge. 
 
 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, 68. 
 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. 
 
INDEX. 635 
 
 LEGITIMACY. 
 
 Presumption that every person is legitimate, 107. 
 
 Illustrations, 109. 
 Old rule on the subject, 108. 
 Eule 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, 116. 
 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 wife Inadmissible, 118. 
 Legitimacy of child can not be contested by mother or heirs, 118. 
 
 LETTERS. 
 See Course of Business. 
 
 LIBEL. 
 See Intent. 
 
 LIEE. 
 See Death ; Survivorship. 
 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, 194-196. 
 
 LDJE, CHANGE IN. 
 See Habits. 
 
 LIMITATIONS. 
 See Payment. 
 
 LOAN. 
 See Interest. 
 
 MARRIAGE. 
 See Innocence (Civil Cases) . 
 Presumption of, 105. 
 
 That marriage ceremony was properly performed, 106. 
 
 MEANS OF COMMITTING CRIME. 
 
 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. 
 
636 INDEX. 
 
 MORAL DUTY. 
 
 Performance of, not presumed, 81. 
 
 MORTGAGES. 
 See Course op Business; Documents. 
 Presumed paid after twenty years, 308. 
 Illustrations, 316. 
 Reasons, 317-319. 
 
 MOTIVE. 
 
 May overthrow presumption of innocence, 478. 
 
 Illustrations, 478-481. 
 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, 505. 
 
 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 on wife's land by husband are a gift 
 
 to her, 280. 
 That wife buys articles for home by consent of husband, 280. 
 That person is sane, 280. 
 Reasons, 28C-302. 
 
 Other illustrations, 302. 
 That woman beyond certain age is incapable of child bearing, 
 302, 303. 
 
INDEX. 637 
 
 NATURE, COURSE OE — Continued. 
 
 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. 
 
 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 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. 
 
 NECESSITY. 
 See Innocence (Civil Cases.) 
 
 NEGLIGENCE. 
 
 Negligence not presumed, 102. 
 
 That fire was not negligent, 102. 
 
 That vessel was seaworthy, 102. 
 
 Aliter, 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 Domicil, 
 
 NOTARY. 
 See Official Acts. 
 
 OFFICERS. 
 See also Offical Acts. 
 Private officers presumed to be properly appointed and to do their 
 duty, 60. 
 That cashier's bond was approved, 60. 
 That corporation president had power to indorse note, 60. 
 That officers of corporation were properly appointed, 60. 
 
638 INDEX. 
 
 OFFICERS — Continued. 
 
 That attorneys for State had authority of Governor, 61. 
 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, 61. 
 That quorum of members were present at meeting, 61. 
 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 clerk is properly appointed, 49. 
 So as to pound-keeper, 49. 
 As to collecter 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, 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, 66. 
 The proclamation was posted by order of commander, 56. 
 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 was 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, 58. 
 That taxes were paid by testator, 58 
 Reasons for the rulings, 69. 
 
INDEX. 639 
 
 OPPORTUNITY. 
 
 To commit crime raises presumption of guilt, 506. 
 
 Illustrations, 506. 
 Unless another had better opportunity, 506. 
 Illustrations, 506 
 
 OTHER CRIMES. 
 
 Other crime than that charged can not be proved against prisoner, 
 481. 
 Illustrations, 481-483. 
 As that 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 charged 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, 486. 
 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. 
 Res gestce may be proved though another crime, 490. 
 Illustrations, 490. 
 Reasons, 491, 492. 
 
 OWNERSHIP. 
 See Possession ; Real Property; Chattels. 
 
 PARENT AND CHILD. 
 See Nature, Couksk of. 
 
640 INDEX. 
 
 PARENTAGE. 
 See Legitimacy. 
 
 PARTNERSHIP. 
 
 See, also, Course of Business. 
 Partnership presumed to continue, 172. 
 Illustrations, 175. 
 
 PAYMENT. 
 
 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, 336. 
 
 2. By part payment, 333. 
 
 Illustrations, 336. 
 
 3. By known insolvency of debtor, 333. 
 
 Illustrations, 336. 
 Reasons, 337-340. 
 
INDEX. 641 
 
 PAYMENT — Continued. 
 
 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. 
 
 Illustration, 344. 
 
 Reasons, 344-346. 
 
 2. Possession by debtor of obligations, 344. 
 
 Illustrations, 346. 
 Reasons, 347-349. 
 
 3. Cancellation of obligation, 344. 
 
 Illustrations, 349. 
 Reasons, 349-350. 
 i. 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. 
 
 Illustrations, 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. 
 
 Illustrations, 356 . 
 Presumption of payment is stronger than presumption of continu- 
 ance, 356. 
 But weaker than presumption of innocence, 356. 
 Illustrations, 356. 
 Reasons, 357. 
 PENALTY. 
 See Fraud. 
 
 PERSONAL PRORERTY 
 See Chattels. 
 
 41 
 
642 INDEX. 
 
 POSSESSION. 
 See Suit; Larceny; Chattels; Real Prorerty. 
 Possession or ownership of property presumed to continue, 163. 
 
 Reasons, 163. 
 Non-possession or loss of property presumed to continue, 153, 164. 
 
 Illustrations, 164. 
 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, 508. 
 
 Illustrations, 609. 
 To avert suspicion, 508. 
 
 Illustrations, 509. 
 Reasons, 610. 
 Miter where preparations innocent, 510 
 
 Illustrations, 510. 
 Or for another crime, 610. 
 
 Illustrations, 511. 
 Or crime frustrated or abandoned, 510. 
 
 Illustrations, 611. 
 
 PRESUMPTIONS. 
 Defined, 556. 
 
 Must be based on fact and not on inference, 569. 
 Illustrations, 669. 
 Reasons, 670-575. 
 Can not contradict facts, 576. 
 
 Illustrations, 576. 
 
 Are not continuous, 679. 
 
 Illustrations, 579. 
 
 Reasons, 579. 
 
 Are not retroactive, 579. 
 
 Illustrations, 580. 
 
 Reasons, £81. 
 
 PRESUMPTIONS OE EACT. 
 Defined, 556. 
 
 PRESUMPTIONS OE LAW. 
 Defined, 656. 
 
 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. 
 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 
 
 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, 618. 
 Illustrations, 518. 
 Reasons, 519-522. 
 Reasonable explanation of possession overthrows presumption, 622. 
 Illustrations, 522. 
 Reasons, 522. 
 Unless explanation inconsistent, 622. 
 Illustrations, 523. 
 Reasons, 523. 
 What is or is not " recent," 524. 
 Kind of property a test, 624. 
 Illustrations, 625. 
 Reasons, 626-529. 
 
 REGULARITY. 
 See Judicial Acts; Official Acts,; Officers; Legislature ;/ 
 Course of Business. 
 
 RES GEST^I. 
 
 Res Gestce may be proved though another crime, 490. 
 Illustrations, 490. 
 Reasons, 491, 492. 
 
644 INDEX. 
 
 RESIDENCE. 
 See Domicil. 
 
 ROBBERY. 
 
 See Recent Possession. 
 
 SALES. 
 See Course 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 op 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 op Crime. 
 
 SPOLIATION. 
 
 Spoliator, presumptions against a, 120. 
 
 Omission of party to testify, presumption arises against Mm, 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 — Conti traecl . 
 
 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, presumption that it was of the 
 
 smallest denomination, 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 five 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 preventing value of goods being shown mulct in high- 
 est, 141. 
 Destruction of deed by claimant, 141. 
 And of contract of sale 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. 
 Ealsity 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 officers of corporations, 148. 
 
646 INDEX. 
 
 SPOLIATION— Continued. 
 
 Destruction of vouchers and invoices by partner, 149. 
 
 Eeasons, 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, 156. 
 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. 
 
 Eeasons, 159, 160. 
 Attempt to thwart investigation, 533. 
 
 Illustrations, 533. 
 Destruction of evidence raises presumption, 639. 
 
 Illustrations, 541. 
 Concealment of evidence, 639. 
 
 Illustrations, 541. 
 Fabrication of evidence, 639. 
 Illustrations, 542. 
 Eeasons, 543. 
 STATE. 
 See Pokeign Laws. 
 
 STATUTES. 
 See Legislature. 
 
 SUICIDE. 
 See Life. 
 
 SUPPEESSION OP EVIDENCE. 
 See Spoliation. 
 
 SUEVIVOESHIP. 
 
 Survivorship, presumption of, 240. 
 
 No presumption of survorship as to victims of common calamity, 
 240. 
 Illustrations, 241-243. 
 Eeasons, 243-246. 
 Exceptions, 246. 
 
 Illustrations, 246, 247. 
 
INDEX. 6 A 7 
 
 TAXES. 
 
 Taxes presumed paid after twenty years, 308. 
 Illustrations, 320. 
 
 THREATS. 
 
 Raise presumption of guilt, 511. 
 Illustrations, 511. 
 Seasons, 512. 
 Aliter when another may have executed them, 512. 
 Illustrations, 513. 
 
 TITLE. 
 See Real Property; Chattels. 
 
 TRUSTS. 
 
 Presumed executed after twenty years, 308. 
 Illustrations, 320. 
 
 USURY. 
 See Eratjd. 
 
 VALUE. 
 
 Invoices not produced, goods presumed undervalued, 122. 
 
 Eef usal to produ ce building plan or to allow 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, goods presumed undervalued, 122. 
 Refusal to produce building plan or to allow expert to 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 that 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. 
 
 Pour out of five attorneys of a party deny a fact, presumption 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. 
 Eeasons, 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.