Page images

production of a receipt for later arrears, which affords a presumption that the earlier arrears are satisfied, without laying any ground for the introduction of such evidence by showing that positive evidence cannot be procured. See observations in Doe d. Telsh v. Langfield, 16 M. & W. 513.

Some presumptions are artificial, and legally admit of no contradiction by contrary evidence; of this kind was the presumed revocation of a will by a subsequent alteration of the property. Goodtitle d. Holford v. Otway, 2 H. Bl. 522. So some damage is conclusively presumed to result from an unlawful act done by the defendant and actionable per se.

Another class of presumptions includes those cases in which a jury will be directed by the court to presume a fact, of which no evidence has been given. Thus a bill of exchange is always presumed to be given for a good consideration. Philliskirk v. Pluckwell, 2 M. & S. 395. So the law always presumes innocence; vide post, p. 94. So the jury ought to be told to presume legitimacy; Banbury Peerage case, 1 Sim. & St. 153; and marriage from cohabitation, except in prosecutions for bigamy, and formerly in actions for adultery; Doe d. Fleming v. Fleming, 4 Bing. 266; Campbell v. Campbell, L. R., 1 H. L. Sc. 182; Neo y. Neo, L. R., 6 P. C. 382, 386.

The law presumes in favour of possession, see Lee v. Johnstone, L. R., 1 H. L. Sc. 426; and, in the case of land, presumes the highest estate in it, viz., a seisin in fee. See post, p. 38. A good tenant to the præcipe is presumed in support of an old recovery. Gilb. Ev. 27. A deed thirty years old, and in unsuspected custody, is presumed to have been duly executed, see Proof of deeds, &c., post, p. 140. Long possession is a presumption of the regular endowment of a vicarage. Crimes v. Smith, 12 Rep. 4. So the continuance of things in statu quo will be generally presumed; as where the plaintiff, being slandered in his official character, proves his appointment to the office just before the libel, his continuance in office at the time of the libel need not be proved, though averred, if such continuance be consistent with the nature of the office. R. v. Budd, 5 Esp. 230; Steward v. Dunn, 12 M. & W. 655. So proof of official character at a certain time may in some cases be evidence that the party had that character within a reasonable time before. Doe d. Hopley v. Young, 8 Q. B. 63. Every place is presumably within some parish. R. v. S. Margaret's, 7 Q. B. 569. But a place, named generally, is itself presumed to be a vill; at least such was the old law; for there may be extra-parochial places, but all places in England are either vills or within a vill. Adeson v. Otway, Freem. 228, 240. So the law presumes that a party intended that which is the immediate or probable consequence of his act. R. v. Dixon, 3 M. & S. 11, 15. In such cases, in the absence of contrary proof, the jury are, it should seem, as much bound to find agreeably to the legal presumption, as they are to find according to the law as explained by the judge.

A third class of presumptions is exclusively within the province of the jury, and they occur when direct proof of a fact is offered to the jury as probable evidence from which they may infer another fact. As where a witness says that he lent a certain printed book to A. B., who afterwards returned to him a book exactly like it, which he believes to be the same, but cannot swear to its identity, this is proof of identity ; for it is inore probable that it was the same than another. Fryer v. Gathercole, 4 Exch. 262.

There is a species of presumption not uncommonly urged in the addresses of a counsel to a jury, viz., the presumption that the testimony of a witness who might be, but is not, called, is unfavourable to the party who omits to call him. So it is sometimes treated as a legitimate inference that a document, tendered in evidence by A. and objected to by B., is unfavourable to the case of B. Thus, where a document was offered in evidence to confirm the statement of a witness, but was rejected by the judge, it was held to be no misdirection for the judge to tell the jury that the document might be assumed, against the objecting party, to be one which confirmed the testimony of the witness. Sutton v. Davenport, 27 L. J., C. P. 54. Such presumptions are of no value as evidence per se, and are not worth much except under special circumstances. If the witness, not called, be present at the trial, he may be called by the opposite party. If not present, his absence may be owing to other causes than that of wilful suppression. Where the document is excluded by the ruling of the judge, it is because the law presumes that the ends of justice will not be advanced by the reading of it, and it seems a strong thing for the court to invite inferences against the objecting party, though counsel cannot be restrained from addressing any arguments, however fallacious, to the jury, But, generally, there is a fair presumption against a party who keeps back a document in his own possession. Att.-Gen. v. Windsor, Dean of, 24 Beav. 679. See also the observations hereafter on not calling a party as a witness, Proof by witnesses, post, p. 164. We have seen that the refusal of a party to produce a document after notice to produce is not evidence per se; ante, p. 13; accord. Chaplin v. Reid, 1 F. & F. 315; but it is matter of observation to the jury. S. C.

The following are a few of the most useful and usual cases of presumption:

The existence of an immemorial custom may be presumed from an uncontradicted usage of twenty years, and it ought to be so presumed by the jury if there be nothing in evidence to negative such presumption. P. v. Jolliffe, 2 B. & C. 54; Jenkins v. Harvey, 1 C., M. & R. 877. The flowing of the tide is presumptive evidence of a public navigable river; Miles y. Rose, 5 Taunt. 705; but the strength of this primâ facie evidence depends upon the situation and nature of the channel; R. v. Montague, 4 B. & C. 602; and long obstruction of the right of navigation is presumptive evidence of its legal extinction by natural or legal means. S. C. Land lying between high and low-water marks on the sea shore, or the banks of a navigable river is, primâ facie, extra-parochial. R. v. Musson, 8 E. & B. 900; 27 L. J., M. C. 100; Bridgwater Trustees v. Bootle-cum-Linacre, L. R., 2 Q. B. 4. But for civil parochial purposes such land is now, by 31 & 32 Vict. c. 122, s. 27, no longer extra-parochial.

Cujus est solum ejus est usque ad cælum et ad inferos, is a maxim juries are directed to observe.

A letter is presumed to have een written on the day on which it is dated, as against the writer. Hunt v. Massey, 5 B. & Ad. 902. And it may be evidence of the date as against a third person; thus, where indorsee sued the acceptor, who pleaded that plaintiff's indorser took the bill with notice that the defendant was not liable upon it, and indorsed it with like notice to plaintiff, it was held that defendant might prove that the indorser had such notice by producing letters written by him to defendant; and that the date on them was evidence that the letters had been written before the indorsement. Potez v. Glossop, 2 Exch. 191. The last decision was accompanied with some expression of doubt by the court; it was, however, followed in Malpas v. Clements, 19 L. J., Q. B. 435, where in an action by indorsee against acceptor, a paper, signed by the drawer and purporting to be of even date with the bill, was received in evidence against the plaintiff to prove the terms on which the bill was drawn.

An act done with the knowledge of a person who would have a right to object to it may be presumed to be done by his licence. Thus, where an enclosure had been made from a waste twelve or fourteen years, and seen by the steward of the lord from time to time, without objection, it was left to the jury to say whether the inclosure was made by the lord's licence. Doe d. Foley v. Wilson, 11 East, 56. An entry in a merchant's book, purporting to be a copy of a letter addressed by him to his partner abroad, is evidence, as against the writer, that it was also sent. Sturge v. Buchanan, 10 Ad. & E. 598. So indorsements on a promissory note admitting the receipt of interest, are presumed (except for the purpose of rebutting the Statute of Limitations, vide post, p. 38) to have been made at the time they bear date. Smith v. Battens, 1 M. & Rob. 341. And a bill is presumed to be made on the day of its date; Owen v. Waters, 2 M. & W. 91 ; Laws v. Rand, 3 C. B., N. S. 442; 27 L. J., C. P. 76; except when used to prove a petitioning creditor's debt at the date specified; Anderson v. Weston, 6 N. C. 296, 301; but the soundness of this exception was questioned in Potez v. Glossop, ante, p. 35. When the bona fides of a sale to the plaintiff by a bankrupt was disputed by the assignees, the plaintiff was allowed to use a receipt and delivery order for the goods, dated at the time of the alleged sale, but not delivered to the witness who produced them till after the sale and bankruptcy, as confirmatory evidence of the date of the sale. Morgan v. Whitmore, 6 Exch. 716 ; 20 L. J., Ex. 289. On the ground of danger of collusion, it was considered necessary to give extrinsic evidence of the date of letters put in to show the terms on which husband and wife were living, in an action for adultery. Trelawney v. Colman, 2 Stark. 193.

In many cases, though the fact of actual knowledge cannot be proved, it will be presumed. Thus, where the rules of a club are contained in a book openly kept by the proper officer or servant of the club, every member of the club must be presumed to be acquainted with them. Raggett v. Musgrave, 2 C. & P. 556; Alderson v. Clay, 1 Stark. 405; Wiltzie v. Adamson, 1 Phill. Ev. 252, 6th ed. A person dealing with a registered company is presumed to know the registered constitution of the company. Balfour v. Ernest, 5 C. B., N. S. 600; 28 L. J., C. P. 170.

It is not very easy to distinguish those presumptions which are obligatory on a jury from those which they are at liberty to disregard and to negative, even when not rebutted. Judges have entertained different opinions on this head as regards the effect of long user in proof of prescriptions and customs. On the one hand, the title to important rights can hardly be considered as secure, if no antiquity of enjoyment can prevent them from being exposed to the casualties of a verdict; on the other hand, it seems to be a contradiction in terms to leave to the jury presumptive evidence of a fact with no alternative but to find it. See the remarks in Newcastle, Pilots of, v. Bradley, 2 E. & B. 430-1, n.

It is not permitted to the parties to prove every fact which would lead to a presumption in some measure bearing on the question in issue. If there were no limits to this, it is obvious that a trial might be unduly lengthened; and it is clear that a judge may refuse to receive evidence which only leads to a very weak presumption. See Proof of collateral facts, post, pp. 84, 85.

Presumption of payment.] If a landlord give a receipt for the rent last due, it is presumable that all former rent has been paid. Gilb. Ev. 157. And payment from 1864 to 1877 by a tenant in common to his co-tenant of a moiety of the rent of the lands is said to be evidence of such payment prior to 1864. Sanders v. Sanders, 19 Ch. D. 373, C. A. Where a bill of exchange, negotiated after acceptance, is produced from the hands of the acceptor after it is due, the presumption is, that the acceptor has paid it; Gibbon v. Featherstonhaugh, 1 Stark. 225; but not without proof of circulation after acceptance. Pfiel v. Vanbatenberg, 2 Camp. 439. Proof that the plaintiff and other workmen employed by the defendant came to him regularly every week to receive their wages from him, and that the plaintiff had not been heard to complain of non-payment, is presumptive evidence of payment of his past wages. Lucas v. Novosilieski, 1 Esp. 296; Sellen v. Norman, 4 C. & P. 80. So where the demand was for the proceeds of milk sold daily to customers by the defendant as agent to the plaintiff, and it appeared that the course of dealing was for the defendant to pay the plaintiff every day the money which she had received without any written voucher passing, it was ruled that it was to be presumed that the defendant had in fact accounted, and that the onus of proving the contrary lay on the plaintiff. Evans v. Birch, 3 Camp. 10. So where goods have been consigned to a factor to sell on commission, it may be presumed, after a reasonable time [e.g. fourteen years) that he has accounted. Topham v. Braddick, 1 Taunt. 572. A debt, whether by simple contract

or specialty, may be presumed to be satisfied from mere lapse of time. Thus, a simple loan thirteen years ago may be presumed to be repaid, where no evidence to the contrary is offered. Cooper v. Turner, 2 Stark. 497. A similar presumption was held to arise in the case of a promissory note; Duffield v. Creed, 5 Esp. 52; see also Brown v. Rutherford, 14 Ch. D. 687, C. A.; this was, however, doubted by Abbott, C. J., in Du Belloix v. Waterpark, 1 D. & Ry. 16. The production of a cheque drawn by the defendant on his banker, and payable to the plaintiff, with proof that plaintiff indorsed his name upon it, and that it had been paid, affords primâ facie evidence of payment to him. Egg v. Barnett, 3 Esp. 196; Boswell v. Smith, 6 C. & P. 60. So the drawing of a cheque by A. in favour of B., and payment of it to B., was held proof of payment by A. to B., without showing that A. gave it to B. Mountford v. Harper, 16 M. & W. 825; correcting the decision in Lloyd v. Sandilands, Gow, 16. The strength of evidence such as that in the cases last cited must necessarily vary with the character of the debt, the mode in which it has been contracted, the position of the parties, and other similar circumstances. As if the party producing the security were fellow-lodger or clerk to the original holder, or his near relation, or in any position where he might easily possess himself of the document. Where S. proved that he lent B. a cheque on his bankers for 1001., and produced the cheque crossed with the names of B.'s bankers, and showed that 1001. had been paid to the account of B. the day after the cheque became due; but it appeared that the papers of B., after he became bankrupt, fell into the hands of S. : it was held that there was no presumption that the amount of the cheque had been paid to B. Bleasby v. Crossley, 3 Bing. 430. In an action by indorsee against acceptor, to which defendant pleaded payment, the plaintiff produced the bill on which a receipt was indorsed; proof was given that an unknown person had, after dishonour by the defendant, paid the amount to a holder, and taken it away with the receipt indorsed : held that this was no evidence of payment by the defendant. Phillips v. Warren, 14 M. & W. 379.

Although a limitation of actions on bonds, &c., is now provided for by stat. 3 & 4 Will. 4, c. 42, yet a reference to the cases under the former law will still be occasionally necessary or convenient. Payment of a bond is presumed after twenty years without demand made; Oswald v. Legh, 1 T. R. 270; Bostock v. Mume, 7 M. & G. 893 ; and even after the lapse of a less time, if other circumstances concur to fortify the presumption, as a settlement of accounts in the meantime. S. C. Colsell v. Budd, 1 Camp. 27. The presumption may be rebutted by circumstances, as by the defendant's admission of the debt, or by proof of payment of interest within twenty years. So by proof that the defendant has resided abroad during the whole of the time; Newman v. Newman, 1 Stark. 101; Elliott v. Elliott, 1 M. & Rob. 44; or was insolvent; Fladong v. Winter, 19 Ves. 196; see Hull, Mayor of, v. Horner, Cowp. 109, and 3 Man. & Ry. 118, n., where the origin of the doctrine of twenty years' presumption is discussed. But see Willaume v. Gorges, 1 Camp. 217, contra.

On the ground that they are against the obligee's interest, indorsements on a bond made by the deceased obligee, acknowledging the receipt of interest within twenty years, have been admitted to rebut the presumption of payment of principal, provided there be evidence that such indorsements existed before the presumption of payment arose. Searle v. Barrington, Ld., 2 Stra. 826; Rose v. Bryant, 2 Camp. 322; Gleadow v. Atkin, 1 Cr. & M. 421. But where the indorsement was made after the lapse of twenty years it was not admissible in evidence; Turner v. Crisp, cited Stra. 827. Since Lord Tenterden's Act (9 Geo. 4, c. 14), s. 3, indorsements of this kind are no longer sufficient to prevent the operation of the Statute of Limitations in the case of bills, notes, and other simple contracts within the provisions of that statute; but they may still be admissible for other purposes, as to rebut the presumption of payment of principal ; and as the Act of 9 Geo. 4, seems to contemplate only writings” within the old Statute of Limitations, and no similar provision is contained in the stat. 3 & 4 Will. 4. c. 42, indorsements on bonds and specialties may still be available to exempt the debt from the operation of the statute, by constituting evidence of part payment under sect. 5 of the last Act. If so, it may be a question whether, notwithstanding the decisions mentioned under the last head respecting the presumption in favour of the dates which instruments purport to bear, some extrinsic evidence ought not to be given that the indorsements were really made at the date thereof, or at least before the time of limitation had lapsed. See the observations in 1 Taylor, Evid., $$ 623– 629. The preponderance of authority is at present against the admission of such indorsements without extrinsic proof of the date. An indorsement, made within twenty years, of the payment of interest within twenty years, is sufficient to rebut the presumption, though the interest accrued beyond twenty years. Sanders v. Meredith, 3 M. & Ry. 116. An indorsement on a note, payable after demand, of the payment of interest, is evidence of the note having become payable by a demand having been made. Brown v. Rutherford, 14 Ch. D. 687, C. A.

Presumption of property.] Proof of the possession of land, or of the receipt of rent from the person in possession, is primâ facie evidence of seisin in fee. See post, tit. Action for recovery of land. The owner of the fee simple is presumed to have a right to the minerals; but that presumption may be rebutted by non-enjoyment, and by the user of persons not the owners of the soil. Rowe v. Grenfel, Ry. & M. 396; Rowe v. Brenton, 8 B. & C. 737. Payment of a small unvaried rent for a long series of years (e.g. 38] to the lord of a manor, raises the presumption that the rent is a quit rent, and not rent service. Doe d. II hittick v. Johnson, Gow, 173. Sed qu. see Hardon v. Hesketh, 4 H. & N. 175; 28 L. J., Ex. 137. But long-continued payment by one lord of a manor to another lord is not presumptive evidence that one manor was

originally part of the other. Anglescy, Ms. v. Hatherton, Ld., 10 M. & W. 218. In ejectment for a mine, a former recovery in trover for lead dug out of it, does not per se, afford evidence of the plaintiff's then possession of the mine. B. N. P. 102. The owners of contiguous houses have no presumed right of mutual

« PreviousContinue »