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the burden of
§ 310. Strong presumptions of fact, on the contrary, Strong preshift the burden of proof, even though the evidence to sumptions shift rebut them involve the proof of a negative (t). The evi- proof. dentiary fact giving rise to such a presumption is said to be "primâ facie evidence" of the principal fact of which it is evidentiary. Thus, possession is primâ facie evidence of property; and the recent possession of stolen goods is sufficient to call on the accused to shew how he came by them, and, in the event of his not doing so satisfactorily, to justify the conclusion that he is the thief who stole them (u). So, a receipt for rent accrued due subsequently to that sued for is primâ facie evidence of payment as it is unlikely that a landlord would not take in the debt of longest standing first (v): and a beautiful instance of this species of presumption is afforded by the celebrated judgment of Solomon; who, with the view of ascertaining which of two women who laid claim to a child was really the mother, gave orders, in their presence, for the child to be cut in two and a part given to each, on which the real mother's natural feelings interposed, and she offered rather to abandon her right to the child than suffer it to be put to death (x).
be found Dig. lib. 22, tit. 3, 1. 26. Sir W. D. Evans, in his valuable edition of Pothier, observes on this passage, that it does not sufficiently appear from the law, as given in the Digest, that the brother had lived any great length of time, or that any great harmony had existed between him and his sister. He seems, however, to have overlooked the phrase quamdiu virit, and the peculiar expression desideratum.
(t) "Præsumptio fortior vocatur, quæ determinat judicem, ut cre
dat, rem certo modo se habere,
(u) See Part 2, ch. 2.
§ 311. Presumptions of this nature are entitled to great weight, and, when there is no other evidence, are generally decisive in civil cases (y). In criminal, and more especially capital ones, a greater degree of caution is, of course, requisite, and the technical rules regulating the burden of proof cannot be always so strictly adhered to (z).
§ 312. The resemblance between inconclusive presumptions of law and strong presumptions of fact cannot have escaped notice-the effect of each being to assume something as true until rebutted; and, indeed, in the Roman law, and other systems where the decision of both law and fact is intrusted to a single judge, the distinction between them becomes almost imperceptible in practice (a). But it must never be lost sight of in the common law, where the functions of judge and jury should always be kept distinct. Where a presumption of law is disregarded by a jury, a new trial will be granted ex debito justitiæ; but where the presumption disregarded is only one of fact, however strong and obvious, the granting a new trial is at the discretion of the court in banc. Unfortunately, however, the line of demarcation between the different sorts of presumptions has not always been observed with the requisite precision. We find the same presumption spoken of by judges, sometimes as a presumption of law, sometimes as a presumption of fact, sometimes as a presumption which juries should be advised to make,
(y) Huberus, Præl. Jur. Civ.
(a) "Quælibet exempla fortio-
præs. jur.) non malè referuntur, si hac distinctione placeat uti." Huberus, Præl. Jur. Civ. lib. 22, tit. 3, N. 18. See, also, Gresley, Evidence in Equity, p. 372.
sometimes as one which it was obligatory on them to make, &c. (b)
§ 313. We come to the consideration of "mixed Mixed presumptions. presumptions;" or, as they are sometimes called, "presumptions of mixed law and fact," and "presumptions of fact recognized by law." These hold an intermediate place between the two former; and consist chiefly of certain presumptive inferences which from their strength, importance, or frequent occurrence, attract as it were the observation of the law, and being constantly recommended by judges and acted on by juries, become in time as familiar to the courts, and occupy nearly as important a place in the administration of justice, as the presumptions of the law itself. Some also have been either introduced or recognised by statute. They are in fact a sort of quasi præsumptiones juris, and, Grounds of. like the strict legal presumptions, may be divided into three classes:-1st. Where the inference is one which common sense would have made for itself; 2nd. Where an artificial weight is attached to the evidentiary facts beyond their mere natural tendency to produce belief;
(b) Phill. & Am. Ev. 460, 461; 1 Phill. Ev. 470, 10th Ed. When such language is found in the judgments of the superior courts, it is not surprising that the proceedings of inferior ones should exhibit even greater inaccuracy and confusion. Nothing, for instance, is more common than to hear a jury told from the bench, that when stolen property is found in the possession of a party shortly after a theft, the law presumes him to be the thief; - a direction both
wrong and mischievous,—as cal-
Artificial presumptions formerly carried too far.
and 3rd. Where from motives of legal policy juries are recommended to draw inferences which are purely artificial. The two latter chiefly occur where long established rights are in danger of being defeated by technical objections, or want of proof of what has taken place a great while ago; in which cases it is every day's practice for judges to advise juries to presume without proof the most solemn instruments, such as charters, grants, and other public documents, as likewise all sorts of private conveyances (c).
§ 314. Artificial presumptions of this kind require to be made with caution, and it must be acknowledged that the legitimate limits of the practice have often been very much overstepped (d). There are many cases in the books on this subject which cannot now be considered as law, and some of which even border on the ridiculous. In an action on the game laws, it was suggested that the gun with which the defendant fired was not charged with shot, but that the bird might have died in consequence of the fright, and the jury having given a verdict for the defendant, the court refused a new trial (e); and in another case, Lord Ellenborough is reported to have cited with approbation an expression of Lord Kenyon, that, in favour of modern enjoyment, where no documentary evidence existed, he would presume two hundred conveyances, if necessary (f). So, in Wilkinson v. Payne (g), which was an action on a promissory note, given to the plaintiff by the
(c) Infra, sect. 2, sub-sect. 3. (d) See Doe d. Fenwick v. Reed, 5 B. & A. 232, per Abbott, C. J.; Harmood v. Oglander, 8 Ves. 130, note, per Lord Eldon, C.; Day v. Williams, 2 C. & J. 460, per Bayley, B.; Doe d. Shewen v. Wroot, 5
East, 132; Gibson v. Clark, 1
(e) Cited by Lord Kenyon in Wilkinson v. Payne, 4 T. R.
(f) Countess of Dartmouth v. Roberts, 16 East, 334. (g) 4 T. R. 468.
defendant in consideration of his marrying the defendant's daughter, to which the defence set up was that the marriage was not a legal one, as the parties were married by licence when the plaintiff was under age, and there was no consent of his parents or guardians; it appeared in evidence that both his parents were dead when the marriage was celebrated, and there was no legal guardian; but the plaintiff's mother, who survived the father, on her death-bed desired a friend to become guardian to her son, with whose approbation the marriage was had. It also appeared that, when the plaintiff came of age, his wife was lying in extremis on her deathbed, and died in three weeks afterwards; but in her lifetime she and the plaintiff were always treated by the defendant and his family as man and wife. Upon these facts, Grose, J., left to the jury to presume a subsequent legal marriage, which they did accordingly, and found a verdict for the plaintiff, and the court refused a new trial (h). This case has been severely commented on by Sir W. D. Evans (i); and indeed, it is impossible not to assent to the observation, that rulings of this kind afford a temptation to juries to trifle with their oath, by requiring them to find as true facts which are probably, if not obviously, false (k). Of late years more correct views have grown up; and in several
(h) These are not the only instances which might be cited. See the case of Powell v. Milbanke, Cowp. 103 (n.), where Lord Mansfield advised a jury to presume a grant from the crown, on the strength of enjoyment under two presentations stolen from the crown. That case was condemned by Lord Eldon in Harmood v. Oglander, 8 Ves. 130, note, and was spoken of by Eyre, C. B., in Gibson v. Clarke, 1 Jac. &
W. 161, note, as presumption run mad." See, also, Doe d. Bristowe v. Pegge, 1 T. R. 758, note; and Lade v. Holford, B. N. P. 110.
(i) 2 Ev. Poth. 330. See, also, Gresley, Evid. in Eq. 374; and per Parke, B., in Doe d. Lewis v. Davies, 2 M. & W. 511.
(k) 3 Stark. Ev. 934, 3rd Ed.; Id. 754, 4th Ed.; 2 Ev. Poth. 331.