CHAPTER IV.

OF PRESUMPTIVE EVIDENCE.

(* 14. Presumptions of law, and of fact; conclusive, or disputable.

15. Conclusive presumptions require no support, and admit no contradiction.

16. These are defined by statutes, as those of limitation.

17. Presumptions founded on prescription; same term as statutes of limitation in analogous cases.

18. Men presumed to intend the natural consequences of their conduct.

19. Records presumed correct: specialties upon consideration.

20. The presumption, omnia rite acta, either from lapse of time, or from the fact

of being done.

20a. In the latter case, the force of the presumption will vary with the circum

stances.

21. So ancient deeds and wills are presumed genuine after the lapse of thirty years. 22. Estoppels are of the class of conclusive presumptions.

23. The recitals in deeds conclusive against parties and privies.

24. The grantor in a deed estopped to deny that he had good title, and from

claiming title adverse to his covenants.

25. The tenant cannot deny the title of his landlord

26. Recitals in deed not conclusive except of facts directly stated.

27. Admissions, solemn and unsolemn, conclusive.

28. Conclusive presumptions apply to infants and married women, as to capacity and consent.

29. In some countries conclusive presumptions exist, as to survivorship, but not common law.

30. It is there regarded as a question of fact for the jury.

31. Conclusive presumptions applied by the law of nations.

32. These presumptions founded more upon policy than probability.

33. Disputable presumptions good until disproved.

34. These depend upon common experience, and are referable to the jury, where any evidence is given.

35. Presumption of innocence allowed to overcome other presumptions.

36. But in the publication of libel the presumption of innocence yields to that of malice.

87. The destruction of documentary evidence raises a presumption of guilt The fabrication of evidence has a tendency in the same direction.

38. Presumptions founded on the course of trade and business.

88a. Presumptions of the due execution of wills and deeds.

39. Presumptions of payment of bonds and other instruments from the lapse of twenty years.

40. Presumptions from the due course of business in public and private adminis

tration of duty.

41. Presumptions in regard to the continuance of life.

§ 42. Presumptions that condition and character continue unless the contrary be shown.

43. Presumptions of the adoption of foreign laws, from the comity of nations. 44. Presumptions of fact defined.

45. Presumptions from experience against the testimony of accomplices, the verbal admissions of a party, &c. &c.

46. Presumptions of grants and conveyances.

47. Claims long acquiesced in presumed to be founded in right.

48. The subject embraces all grounds of inferring one fact from the existence of others, whether founded upon a mechanical and physical connection, or upon mere probability, depending upon moral evidence.]

§ 14. THE general head of PRESUMPTIVE EVIDENCE is usually divided into two branches, namely, presumptions of law and presumptions of fact. PRESUMPTIONS OF LAW consist of those rules, which, in certain cases, either forbid or dispense with any ulterior inquiry. They are founded, either upon the first principles of justice; or the laws of nature; or the experienced course of human conduct and affairs, and the connection usually found to exist between certain things. The general doctrines of presumptive evidence are not therefore peculiar to municipal law, but are shared by it in common with other departments of science. Thus, the presumption of a malicious intent to kill, from the deliberate use of a deadly weapon, and the presumption of aquatic habits in an animal found with webbed feet, belong to the same philosophy, differing only in the instance, and not in the principle, of its application. The one fact being proved or ascertained, the other, its uniform concomitant, is universally and safely presumed. It is this uniformly experienced connection, which leads to its recognition by the law without other proof; the presumption, however, having more or less force, in proportion to the universality of the experience. And this has led to the distribution of presumptions of law into two classes, namely, conclusive and disputable.

§ 15. Conclusive, or, as they are elsewhere termed, imperative, or absolute presumptions of law, are rules determining the quantity of evidence requisite for the support of any particular averment, which is not permitted to be overcome by any proof that the fact is otherwise. They consist chiefly of those cases in which the long-experienced connection, before alluded to, has been found so general and uniform as to render it expedient for the common good, that this connection should be taken to be inseparable and universal. They have been adopted by common consent, from motives of public policy, for the sake of greater certainty, and the

promotion of peace and quiet in the community; and therefore it is, that all corroborating evidence is dispensed with, and all opposing evidence is forbidden.1

§ 16. Sometimes this common consent is expressly declared, through the medium of the legislature, in statutes. Thus, by the statutes of limitation, where a debt has been created by simple contract, and has not been distinctly recognized, within six years. as a subsisting obligation, no action can be maintained to recover it; that is, it is conclusively presumed to have been paid. A trespass, after the lapse of the same period, is, in like manner, conclusively presumed to have been satisfied. So the possession of land, for the length of time mentioned in the statutes of limitation, under a claim of absolute title and ownership, constitutes against all persons but the sovereign, a conclusive presumption of a valid grant.2

§ 17. In other cases, the common consent, by which this class of legal presumptions is established, is declared through the medium of the judicial tribunals, it being the common law of the land; both being alike respected, as authoritative declarations of an imperative rule of law, against the operation of which no averment or evidence. is received. Thus, the uninterrupted enjoyment of an incorporeal hereditament for a period beyond the memory of man, is held to furnish a conclusive presumption of a prior grant of that which has been so enjoyed. This is termed a title by prescription. If

1 The presumption of the Roman Law is defined to be," Conjectura, ducta ab eo, quod ut plurimum fit. Ea conjectura vel a lege inducitur, vel a judice. Quæ ab ipsa lege inducitur, vel ita comparata, ut probationem contrarii haud admittat; vel ut eadem possit elidi. Priorem doctores præsumptionem JURIS ET DE JURE, posteriorem præsumptionem JURIS, adpellant. Quæ a Judice indicitur conjectura, præsumptio HOMINIS Vocari solet; et semper admittit probationem contrarii, quamvis, si alicujus momenti sit, probandi onere relevet." Hein. ad Pand. Pars iv. § 124. Of the former, answering to our conclusive presumption, Mascardus observes,-"Super hac præsumptione lex firmum sancit jus, et eam pro veritate, habet." De Probationibus, vol. 1, Quæst. x. 48. An exception to the general conclusiveness of this class of presumptions is allowed in the case of admissions in judicio, which will be hereafter mentioned. See infra, §§ 169, 186, 205, 206.

2 This period has been limited differently, at different times; but, for the last fifty years, it has been shortened at succeeding revisions of the law, both in England and the United States. By Stat. 3 & 4 Wm. IV. c. 27, all real actions are barred, after twen ty years from the time when the right of action accrued. And this period is adopted in most of the United States, though in some of the states it is reduced to seven years, while in others it is prolonged to fifty. See 3 Cruise's Dig. tit. 81, ch. 2, the synopsis of Limitions at the end of the chapter (Greenleaf's ed.). See also, 4 Kent, Comm. 188, note (a). The same period in regard to the title to real prop erty, or, as some construe it, only to the profits of the land, is adopted in the Hindu Law. See Macnaghten's Elements of Hindu Law, vol. 1, p. 201.

33 Cruise's Dig. 430, 431 (Greenleaf's ed.). "Præscriptio est titilus, ex usu et tempore substantiam capiens, ab authori tate legis." Co. Litt. 113, a. What length

this enjoyment has been not only uninterrupted, but exclusive and adverse in its character, for the period of twenty years, this also has been held, at common law, as a conclusive presumption of title. There is no difference, in principle, whether the subject be a corporeal or an incorporeal hereditament; a grant of land may as well be presumed as a grant of a fishery, or a common, or a way. But, in regard to the effect of possession alone for a period of time, unaccompanied by other evidence, as affording a presumption of title, a difference is introduced, by reason of the statute of limitations, between corporeal subjects, such as lands and tenements, and things incorporeal; and it has been held, that a grant of lands, conferring an entire title, cannot be presumed from mere possession alone, for any length of time short of that prescribed by the statute of limitations. The reason is, that, with respect to corporeal hereditaments, the statute has made all the provisions which the law deems necessary for quieting possessions; and has thereby taken these cases out of the operation of the common law. The possession of lands, however, for a shorter period, when coupled with other circumstances, indicative of ownership, may justify a jury in finding a grant; but such cases do not fall within this class of presumptions.3

of time constitutes this period of legal memory has been much discussed among lawyers. In this country, the courts are inclined to adopt the periods mentioned in the statutes of limitation, in all cases analogous in principle. Coolidge v. Learned, 8 Pick. 504; Melvin v. Whiting, 10 Pick. 295; Ricard v. Williams, 7 Wheat. 110. In England, it is settled by Stat. 2 & 3 Wm. IV. c. 71, by which the period of legal memory has been limited as follows: in cases of rights of common or other benefits arising out of lands, except tithes, rents, and services, primâ facie to thirty years; and conclusively to sixty years, unless proved to have been held by consent, expressed by deed or other writing; in cases of aquatic rights, ways, and other easements, prima facie to twenty years; and conclusively to forty years, unless proved in like manner, by written evidence, to have been enjoyed by consent of the owner; and in cases of lights, conclusively to twenty years, unless proved in like manner, to have been enjoyed by consent. In the Roman Law, prescriptions were of two kinds: extinctive and acquisitive. The former referred to rights of action, which, for the most part, were barred by the lapse of thirty years. The latter had regard to the mode of acquiring property by long and

uninterrupted possession; and this, in the case of immovable or real property, was limited, inter præsentes, to ten years, and inter absentes, to twenty years. The stu dent will find this doctrine fully discussed in Mackeldey's Compendium of Modern Civil Law, vol. 1, p. 200-205, 290, et seq. (Amer. ed.), with the learned notes of Dr. Kaufman. See also, Novel. 119, c. 7, 8. [See also, 2 Greenl. Ev. (7th ed.), § 587546, tit. PRESCRIPTION.]

i Tyler v. Wilkinson, 4 Mason, 397, 402; Ingraham v. Hutchinson, 2 Ccnn. 584; Bealey v. Shaw, 6 East, 208, 215; Wright v. Howard, 1 Sim. & Stu. 190, 203 Strickler v. Todd, 10 Serg. & Rawle, 63, 69; Balston v. Bensted, 1 Campb. 463, 465; Daniel v. North, 11 East, 371; Sherwood v. Burr, 4 Day, 244; Tinkham v. Arnold, 8 Greenl. 120; Hill v. Crosby, 2 Pick 466. See Best on Presumptions, p. 103, n. (m); Bolivar Manuf. Co. v. Neponset Manuf. Co. 16 Pick. 241. See also post, vol. 2, § 537-546, tit. PRESCRIPTION.

2 Ricard v. Williams, 7 Wheat. 109; Prop'rs of Brattle Street Church v. Bu lard, 2 Met. 363.

8 Sumner v. Child, 2 Conn. 607, 628632, per Gould, J.; Clark v. Faunce. 4 Pick. 245.