repetition of the former gift." The doctrine of resulting trusts arises from another presumption adopted by the Courts of Chancery. When a transfer is made of property without any consideration, express or implied, or any distinct trust stated, the transferee will be presumed to be intended to hold the property in trust for the transferor; and where a person purchases property with his own money in the name of another, it will be presumed that the property so bought is intended to be held in trust for him who pays the purchase-money. But where property is transferred to or purchased in the name of a child the presumption is that it is intended as a provision for such child (d). The same rule applies to a purchase of property in the name of a wife (e).

Where the issue is upon the life or death of a person who has been once shown to be living, the proof of the fact lies on the party who asserts the death, for the presumption is that the person continues alive until the contrary be shown (ƒ). But where it is proved that the person has not been heard of for seven years, a presumption arises that he is dead. This presumption relates only to the fact of death; and the time of death, whenever it is material, must be a subject of distinct proof; for the court will, in the absence of sufficient evidence to the contrary, presume the continuance of life up to the end of the seven years (g). The fact of the Court of Probate

(d) See judgment of Eyre, C. B., in Dyer v. Dyer, 2 Cox, 92. (e) Rider v. Rider, 10 Ves. 366.

(f) Wilson v. Hodge, 2 East, 313.

(g) Nepean v. Doe, 2 M. & W. 910; 2 Sm. L. C. 308; Re Tyndall's Trust, 30 Beav. 161; Dunn v. Snowden, 2 D. & S. 201; Thomas v. Thomas, 2 D. & S. 298.

having granted administration is not sufficient to rebut this presumption (h).

:

Where several persons have perished in the same calamity, the presumption is said to be in favour of the survival of the stronger party (i). But this doctrine has caused much controversy and in a late case where it appeared that a husband, a wife, and their two children were washed off from the deck of a ship by the same wave and drowned; the Master of the Rolls held that in the absence of further evidence it must be presumed that all died at the same moment (k). The same rule was applied when husband and wife were both killed in a railway accident, and the bodies were found two hours afterwards (1).

By the law of marine insurance, if a vessel has sailed, and no tidings of her have been received within a reasonable time, she shall be presumed to have foundered at sea. So it is said that if a ship, shortly after sailing, shall, without visible or adequate cause, become leaky or otherwise incapable of performing the voyage insured, she shall be presumed to have been unseaworthy at the commencement of the risk. But this last rule does not appear to be quite established (m).

Where goods have been lost or damaged while in the custody of a bailee or his servants, it is presumed

(h) Re Beamish, 9 W. R. 475.

(i) Sillish v. Booth, 1 Y. & Col. 117.

(k) Underwood v. Wing, 4 De G. M. & G. 633; nom. Wing v. Angrave, 8 H. of L. Cas. 183.

(1) In the goods of Wheeler, 31 L. J. P. M. & A. 40. (m) Thompson v. Hopper, 6 E. & B. 937.

that the loss or damage arises from his negligence (n). This presumption appears to arise as much in the case of a gratuitous bailee as in that of a bailee for valuable consideration; but the liability will be limited by the rules laid down in Coggs v. Bernard (o).

Partners are presumed to have authority to bind their co-partners in all matters relating to the partnership, but not in matters unconnected with it (p).

The place of a person's birth is presumed to be that of his domicil of origin, if it is the residence of his parents, but the place where a person resides must be taken primâ facie as his domicil (q).

In equity if a person having a partial interest in a settled estate pays off an incumbrance, it will be presumed that he intends to keep the charge alive for his own benefit (r).

It is presumed that if a tenant show a receipt for rent, all previous rent has been paid by him to the landlord (s). A mortgagor in possession is presumed to have authority to distrain as the bailiff of the mortgagee.

When two parishes or properties are separated by a highway, the presumption is that the medium filum via is the actual boundary (t); when they are sepa

(n) Carpue v. L. & B. Railway, 5 Q. B. 747; Latch v. Rumner Railway, 27 L. J. 155, Ex.

(0) 2 Lord Raym. 918; 1 Sm. L. C. 82, and notes.

(p) Sandilands v. Marsh, 2 B. & Ald. 673; Bales v. Westwood, 2 Camp. 12.

(q) Bempde v. Johnston, 3 Ves. 198.

(r) Morley v. Morley, 5 De G. M. & G. 610.

(s) Trent v. Hunt, 9 Ex. 24.

(t) R. v. The Strand Board of Works, 4 B. & S. 526, 541.

rated by a river the medium filum aquæ is presumed to be the actual boundary. By International Law, where two states are bounded by a navigable river, the middle of the channel or Thalweg is presumed to be the boundary with a common right of navigation to both; but when it can be proved that one bank of the river was occupied before the other, it will be presumed that the first occupant has an exclusive title to the river.

CHAPTER VI.

ON EVIDENCE IN MATTERS OF OPINION.

SINCE it is the province of the judge or of the jury, according to the principles of presumptive evidence, to draw all inferences from facts, it follows that

A witness must only state facts: and his mere personal opinion is not evidence.

The object of this rule is to keep the witness, as much as possible, from trespassing on the functions of either judge or jury; and it is relaxed as often as an opinion of a witness can be regarded in the nature of a presumptive fact. Thus, in cases of insanity a medical witness cannot be asked whether he considers that the patient was insane; for that is the issue for the court and jury; but he may be asked whether certain symptoms are indications of insanity, and his answers are evidence for the guidance of the court and jury (a). Thus, on an issue as to the sanity of a testator, Sir F. Thesiger, for the defendant, tendered a letter (purporting to be from the testator) to a medical witness, and proposed to ask him whether the writer of such a letter could be of sound mind.

(a) R. v. M'Naghten, 10 Cl. & Fin. 200.