property, such payment must be deemed voluntary and cannot be recovered. And the fact that the party at the time of making the payment files a written protest does not make the payment involuntary.' He evidently referred to personal property of which the owner might summarily be dispossessed. In Colwell v. Peden, 3 Watts, 327, it was held that assumpsit would not lie against a landlord for money paid by a tenant, after a warrant of distress had been issued in good faith to recover rent alleged to be in arrear, although in fact no rent was actually due. It was there argued that the payment was not voluntary, that the tenant must either pay or have his furniture sold; yet the court held that the tenant could not recover by reason of there being no rent due. He might have maintained either trespass or replevin. Espy v. Allison, 9 id. 462, was the case of a purchaser of land at sheriff's sale, who under the impression that he was liable to pay a bond secured by mortgage on the property purchased, paid the same, and afterward discovered that he was not bound to pay it by reason of the mortgage having previously been satisfied of record, it was held he could not recover the money back, as the holder of the bond had conscientiously received the same. In Boas v. Updegrove, 5 Barr, 516, an execution had issued on a judgment against the former owner of the land, to sell it. The terretenant, supposing the judgment to still be a lien on the land, after it was advertised for sale, paid the money to the sheriff who returned the writ 'money made by the terre-tenant. Before the return day of the writ the latter ruled the money into court and proved that the judgment was no lien, and that he had paid it under a mistake. It was held to be a voluntary payment which the terre-tenant could not recover back, and that the plaintiff in the execution was entitled to the money. It was said to be money which the creditor might conscionably receive, and which he might conscionably retain. In Taylor v. Board of Health, 7 Casey, 73, it was held that a payment of taxes is not compulsory because made under a threat, express or implied, that the legal remedies for its collection will be resorted to. It is there said: We state the case as one of a voluntary payment of taxes because there is no pretense that the defendant's officers did any more than demand the tax under a supposed authority of the law; and this is no more a compulsion than when an individual demands a supposed right.' Again in Real Estate Savings Institution v. Linder, 24 P. F. Smith, 371, it was held that one who voluntarily pays money with knowledge or means of knowledge of the facts, and without fraud on him, cannot recover it back because he paid it in ignorance of the law. In Dillon on Municipal Corporations (§ 751), requisites to maintain an action ex contractu against a municipal corporation to recover back money paid to it for taxes are said to be three. First. The authority to levy the tax must be wholly wanting or the tax itself wholly unauthorized, so that the tax is absolutely void. Second. The money sued for must have been actually received by the defendant corporation, for its own use. Third. The payment by the plaintiff must have been made upon compulsion to prevent the immediate seizure of his goods or the arrest of the person and not voluntarily. 'Unless these conditions concur, payment under protest will not give a right of recovery.' No authority is found which holds that money paid to prevent the sale of lands, under a threat to sell the same on a judgment which is not a lien thereon, can be recovered back, by reason thereof." To the same effect, Rogers v. Inhabitants of Greenbush, 58 Me. 390; S. C., 4 Am. Rep. 292; Detroit v. Martin, 34 Mich. 170; S. C., 22 Am. Rep. 512, and see note, p. 519. Peyser v. Mayor, 70 N. Y. 470; S. C., 26 Am. Rep. 624, seems to the contrary. An illegal tax voluntarily paid by mistake of both law and fact may be recovered. City of Louisville v. Anderson, 79 Ky. 334; S. C., 42 Am. Rep. 220. In Ross v. Draper, 55 Vt. 404, a father having purchased a piano for his daughter, moved it into his house, and some two months afterward, on her attaining her majority, made her a birthday party, and in a formal and public manner, in the presence of all the guests, gave it to her. After this the daughter used the piano as her own, and all the family treated it as hers, except it was stored in the father's house, and by his consent was attached, without her knowledge. After her marriage she lived at her father's house some, and away some, but the piano was left where it had been, as she had no place to put it. Held, that the title to the property passed, and that it was not attachable by the creditors of the donor. The court said: "It matters not that the property was of such a nature that she could not take it into manual possession, as she could have a watch, ring, or set of jewelry. If the gift had been of either of the last-named articles, and the referee had found that thereafter the daughter had used and treated it as her property; that the father and family so treated and spoke of it, although it had been kept in her father's house, and on her marriage and leaving the home of her childhood, because she had no suitable place to keep it she still left it there, could there be the least doubt it would be a perfected gift, that the owner would be the daughter both as against the father and his creditors? We think not. The law recognizes the fact that all species of personal property are not capable of the same kind of possession, and it only requires the purchaser or donee to take such possession as the character and nature of the property admit of, in order to protect it against attachment by the creditors of the vendor or donor. Sanborn v. Kittredge, 20 Vt. 632; Hutchins v. Gilchrist, 23 id. 82; Birge v. Edgerton, 28 id. 291; Fitch v. Burke, 38 id. 683; Sterling v. Baldwin, 42 id. 311. The property in contention was of that bulky character that forbids manual possession. The only possession its nature admitted of consisted in its use and treatment. The treatment of an owner includes acts of dominion and control. The property itself was such as is much more generally used by females than males, and for that reason more likely to be owned by the former. The occasion when the gift was made, especially in a country town, would give notoriety to the transaction equal to a sale in market overt. It is to be remembered that in these days it is not an uncommon thing for the wife and the children, while living at home, each to have and keep separate property in the common home of them all. It is not a matter of course, and no creditor has the right to assume, that all the personal property in the house belongs to the husband and father. It is not uncommon for the daughters to have rooms set apart for their special use, furnished with furniture purchased by, or given | to them, nor for them to own sewing machines or musical instruments. The facts reported do not show a joint possession of the piano by the father and daughter during the two or three years she was at home after the gift and before her marriage, nor after her marriage. He allowed it to be kept upon premises owned by him. This was the extent of his use, control and acts of ownership, save alone his consenting to its sale on his debt some twelve or thirteen years after he had given it away, and this act was not known by the daughter until long after it transpired." WHEAT. This is thus defined in Downton v. Yaeger Milling Co., United States Supreme Court, October Term, 1882, by Mr. Justice Woods: "A grain of wheat may be described generally as follows: It consists of a pellicle or outside covering known as bran, an inner envelop consisting of cells and their contents of gluten and phosphates, the most nutritious portion of the berry, and an interior white mass composed mainly of starch and albuminoid matter, extending to the heart of the berry. At one end of the berry, under an irregularlycurved surface-layer of bran, technically called the shield, is the embryo or germ. The germ is a yellow, waxy substance, and the bran is consistent and tough." VACANT.In Perkins v. West, 55 Vt. 265, a case of construction of a contract, the court held that "if the plaintiff was occupying the barn with her cattle, and hay and grain, the temporary absence of the man having charge of the cattle for the plaintiff did not leave the premises vacant." LOADING. In a statute concerning pilots, the words "loading or discharging at any place" do not restrict the loading to the cargo, but include coals for the purpose of the voyage. 8 P. B. Div. 176. 66 The Winston, CONCEAL. In a statute concerning receiving and concealing horses, "conceal " does not necessarily mean putting in a cellar, or under ground, in a barn, or in some secluded place in the woods," but such concealment may be effected by clipping, or otherwise changing the appearance of the horse, for the purpose of making it more difficult to identify it. State v. Ward, 49 Conn. 429. GOODS OR ARTICLES. A horse comes within this description. State v. Ward, 49 Conn. 429. CATTLE-GUARDS. "The term 'cattle-guards' has no peculiar signification. In the sense in which it is employed in the statute it means such an appliance as will prevent animals from going upon the land adjoining the right of way. A pit under the track does not meet the requirement of the law. We think a proper cattle-guard, under the facts of this case, imports a guard or protection extending the whole width of the right of way." Hesketh v. Wabash, etc., Ry. Co., Iowa Supreme Court, September, 1883. TRINKETS. In Bernstein v. Baxendale, 6 C. B. (N. S.) 251, it was said that while it was impossible to define this term with precise accuracy, yet it implied mere ornament, or if ornament and utility were combined, the former must predominate. Cockburn, C. J., instanced "bracelets, shirt-pins, rings and brooches," and held that ornamental portemonnaies and smelling-bottles, "may fairly and properly fall within the description of trinkets.” Silk watch SILK IN A MANUFACTURED STATE. guards come within this description. Bernstein v. Baxendale, 6 C. B. (N. S.) 251. GLASS. Smelling-bottles are "glass," and so are looking-glasses. Owen v. Burnet, 4 Tyr. 133. DAMAGES BY THE ELEMENTS. In Van Wormer v. Crane, Michigan Supreme Court, October 3, 1883, 16 N. W. Rep. 686, it was held that the phrase damages by the elements excepted," in a lease covers destruction by fire without the lessee's fault. Cooley, J., said: "Damages by the elements' must be conceded to be a somewhat uncertain expression. Strictly speaking, the elements are the ultimate, undecomposable parts which unite to form any thing; as the gases which form air and water are the elements respectively of those substances. But the term is used in many other senses, and the definitions of lexicographers would be of little service to us in this case. Anciently it was supposed there were four elements of material things-earth, air, fire and water; and when it came to be known that this classification had no scientific basis, the term had found a place in common speech which it still retains. Injuries to buildings by wind, rain, frosts and heat are spoken of as injuries by the elements, and all the ordinary decay from natural causes is classed in the same category. Probably no one would make any question respecting this. The injury in this case was caused by fire. No fault in connection with it is charged upon the defendants, and it seems to be taken for granted on both sides that the fire was accidental. We may therefore assume that the fire was one which occurred without traceable fault, and that is to be classed as a calamity for which no one is responsible, except as he may have expressly undertaken to be so. If a flood had destroyed this building the defendants would not be held responsible, because it would have been said the damage is of a sort that must be referred to the elements within the understanding of the parties in entering into this covenant. If a tornado had destroyed it, the same would have been said. We cannot suppose the parties intended to except natural and ordinary decay from wind and rain, and not the more sudden and grievous calamities proceeding from the same sources. The general expression 'damages by the elements' will cover all such injuries, if it will cover any of them. But an injury by fire is as much an injury by the elements as an injury by wind or flood, and we should be at a loss for any ground on which to distinguish it under this covenant. We have no doubt the parties intended by this exception to include all damages resulting from fire, as much as those attributable to air or water, unless traceable to the agency of man. The purpose was to excuse the lessees in cases where the damages from the causes mentioned had happened without their fault, and a popular phrase was made use of to express this intent, instead of specifying the particular injuries which were in mind. In the popular acceptation of the phrase, injuries by the elements are such injuries as result from the operation of the most common destructive forces of nature, against which buildings used to be protected; and of these fire is the chief." Sherwood, J., said: Applying these rules of construction to the covenant contained in this lease, what does the word 'elements' mean as there used? What did the parties understand it to mean when they placed it in the lease? It is claimed by the plaintiff's counsel that it does not include accidental fire or a burning by fire connected with any human agency, but burning caused by lightning or arising from some action of the elements alone; that the legal signification of the word as used in this lease is synonymous with the phrase 'act of God;' that the word 'elements,' as here used, means earth, air, fire, and water; but to enable the defendants to claim the benefit of the exception contained in the covenant to repair, such injury must result from the action of the elements entirely: That the lightning must kindle the fire; the earth must be convulsed; the air must blow in tempest or tornado; the water must come in water-spouts, or from sudden irruption of the sea, breaking by its own force over the barriers. We are not able to agree with the learned counsel in this construction." * * * "Fire is one of the elements, and of all the most dangerous, and whether it comes from spontaneous combustion, from the crater of the volcano, or from the clouds, it is still the same element, recognized as such in all the English lexicons, and we can see no reason for giving the word a different or more limited meaning in legal instruments; and we have no doubt but that accidental fire, without fault or neglect of defendants, was intended by the parties to be included in the clause containing the exception." VOLUNTARY. Stepping off the platform of a car through a hole left in the floor of a bridge for re pairs is not a voluntary exposure to unnecessary danger" within the meaning of an accident insurance policy, when the train had stopped on the bridge on a dark night, and the hole was not visible, and the assured had no notice of or reason to apprehend such danger. Burkhard v. Travellers' Ins. Co., Pennsylvania Supreme Court, October 1, 1883. The court said: "It is true he voluntarily left the car, but a clear distinction exists between a voluntary act and a voluntary exposure to danger. Hidden danger may exist, yet the exposure thereto without any knowledge of the danger does not constitute a voluntary exposure to it. The approach to an unknown and unexpected danger does not make the act a voluntáry exposure thereto. The result of the act does not necessarily determine the motive which prompted the action. The act may be voluntary, yet the exposure involuntary. The danger being unknown, the injury is accidental. Accident is defined by Worcester to be an event proceeding from an unknown cause, or happening without the design of the agent; an unforeseen event, incident, casualty, change. And by Webster, an event that takes place without one's forethought or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected; chance, casualty, contingency. In view of the unquestioned facts the death of the intestate was accidental. The danger was unknown. The injury was not designed. We think there was not such a voluntary exposure to danger as to fairly bring the act of the insured within the meaning of the exception." WALKING OR BEING. Where one in alighting from a car steps through a hole left in the floor of a bridge for repairs, he is not "walking or being on the road-bed or bridge of any railway," within the meaning of an accident insurance policy. Burkhard v. Travellers' Ins. Co., Pennsylvania Supreme Court, October 1, 1883. The court said: "He certainly was not walking on the road-bed or bridge, and strictly speaking it is doubtful whether he was being on either. The evidence indicates that without touching either he probably passed directly from the steps of the car through the hole in the bridge. We will not however put the case on the narrow ground that he did not come in contact with either road-bed or bridge. The language of the exception clearly implies two thoughts. One, that the insured must not be on the road-bed or bridge for any length of time; the other, that the prohibition is not to guard against injury resulting from a defective road-bed or defective railway bridge, but against the danger of injury from trains passing thereon. If the design was to apply the language to bridges defectively constructed or out of repair, it would not have been restricted to railway bridges. It would have included all bridges, both foot and wagon. The purpose is not to avoid liability for injuries resulting from being on bridges unsafe in themselves. The manifest intent is to exempt from responsibility for damages caused by collision with trains moving thereon." THE PRESUMPTION OF CONTINUANCE. II. RULE III. Sanity or insanity once proved to exist is presumed to continue. But aliter, as to temporary insanity, produced by drunkenness, violent disease or other cause. ILLUSTRATIONS. 1. 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) 2. In 1837, H. is inflicted with insanity, resulting from a violent disease. There is no presumption that H. was insane in 1838.(2) Every man being presumed to be sane till the contrary is proved," it was said in case 2, "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 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 anticipated 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 controversy, and not content himself merely with proof of insanity at an earlier period." (1) Ripley v. Babcock, 13 Wis. 425 (1860); Saxon v. Whitaker, 30 Ala. 237 (1857); Sprague v. Duel, 1 Clarke (N. Y.) 90 (1839); Cartwright v. Cartwright, 1 Phill. 100; Menkins v. Lightner, 18 Ill. 282 (1857); Jackson v. Van Dusen, 5 Johns. 154; Ballew v. 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. C. 631 (1880); Hadfield's case, 29 How. St. Tr. 109; McAlister v. State, 17 Ala. 434 (1850); McLean v. State, 16 id. 672 (1849); Pierce v. State, 53 Ga. 365 (1874); State v. Johnson, 40 Conn. 136 (1873); State v. Brown, 1 Houst. Cr. Cas. 539 (1878); People v. March, 6 Cal. 543 (1856). (2) Hix v. Whittemore, 4 Metc. 545 (1842), and see Titlow v. Titlow, 54 Penn. St. 216 (1867); Brooke v. Townshend, 7 Gill. 31 (1854); State v. Sewell, 3 Jones (L.) 245 (1855); People v. Smith, 57 Cal. 130 (1880). RULE IV. The character and habit of a person is presumed to continue as proved to be at a time past. ILLUSTRATIONS. 1. 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. resided in Sante 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.(3) 2. It is attempted to impeach the character of P., a witness at a trial. A. and B. knew P., four years bethat P.'s character was then bad. The presumption is fore, when he resided at another place. They testify that P.'s character remains the same. (4) In case 2 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 knowledge 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 condition 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 opinions 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 sumed to continue, and where derangement or imbeto exist. A partnership once established will be precility of mind has been shown, its continuance is in like manner presumed until the contrary is shown. The principle on which the presumption in such cases rests has, it seems to me, a strong application to the question now before the court. It is not looking 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 common course of life. On the contrary there is a strong probability 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 misanthropist or an unseemly lack of charity." The fact that A. was frequently seen to purchase groceries from B., who was the only grocer in the place, does not raise the presumption that he purchased his entire supply 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.(5) RULE V. 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. 1. 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.(6) 2. 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. (7) (3) McMahon v. Harrison, 6 N. Y. 443 (1852). (4) Sleeper v. Van Middlesworth, 4 Denio, 431 (1847); Wood v. Matthews, 73 Mo. 482 (1881). (5) Scott v. Coxe, 20 Ala. 294 (1852). (6) Delano v. Goodwin, 48 N. H. 205 (1868). (7) Wentworth v. Smith, 44 N. H. 419 (1862); Robinson v. Railroad, 7 Gray, 502. 3. The question was whether a sale of guano was conditioned 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. (8) 4. S. was sued for selling diseased meat. Evidence that several years previous, S. had sold a diseased hog, was offered. The evidence was rejected.(9) 5. A. sued B. for articles furnished him on credit. B. contended that the articles were furnished to the firm of W. & T. Evidence that A. had previously refused to take W. & T.'s note for similar articles furnished to one J. was inadmissible. (10) 6. 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 on the same kind of work as A., and that these laborers were paid. This evidence is irrelevant. (11) 7. 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 promised to pay B.'s.(12) "The plaintiff claims," it was said in case 4, "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 presumptions 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 different article of property, sold several years after, by the same person to a different purchaser, was of a 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 6, the testimony offered had been admitted on the trial. But the Supreme Court held erroneously. "The testimony," said the court, "seems to have been admitted directly against the rule that provides that neither the declarations 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 7, 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 similar or identical even, the defendants by assuming one debt were bound to assume the other. Nor is there (8) Hallingham v. Head, 4 C. B. (N. S.) 388. (9) True v. Sanborn, 27 N. H. 383 (1853). (10) Swainscot Machine Co. v. Walker, 22 N. H. 457 (1851). (11) Filer v. Peebles, 8 N. H. 226 (1836). (12) Phelps v. Conant. 30 Vt. 277 (1958). 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 VI. The habit of an individual being proved, he is presumed to act in a particular case in accordance with that habit. ILLUSTRATIONS. 1. The question was whether a certain person had given a receipt in a certain case. He testifies that although he cannot remember that he gave a receipt in this particular case, yet he usually gave receipt in such His evidence is admissible and raises the presumption that he gave the receipt in this case.(13) case. 2. The question was whether notice of additional insurance had been given by the insured to the insurer. The former was unable to speak positively but testified that it was always his custom to do so in such cases. His evidence was admitted.(14) 3. The question was whether C., the attorney for the plaintiff in a former suit, had directed T., an officer to whom C. gave a writ for service, to take the receipt of M., and not remove the property. T. testified 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, was admissible, and would raise the inference that C. had not done so in the particular case.(15) 4. The question was whether a railroad had 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. (16) 5. 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. (17) 6. 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 receipt for rice received by him. The presumption is that the receipt was so delivered, and A. cannot prove the quantity by parol without accounting for the non-production of the receipt.(18) 7. 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 presumption is that B. did not accept this draft by parol. (19) 8. The question is whether a certain person was personally served with a notice of dishonor or protest. (13) Eureka Ins. Co. v. Robinson, 56 Penn. St. 256 (1867), overruling Schoneman v. Fegley, 14 id. 376 (1850). (14) Eureka Ins. Co. v. Robinson, 56 Penn. St. 356 (1867). (15) Hine v. Pomeroy, 39 Vt. 211 (1859). (16) Vaughn v. Raleigh, etc., R. Co., 63 N. C. 11 (1868), and see Keashan v. Wright, 115 Mass. 361. (17) Meighen v. Bank, 25 Penn. St. 288. |