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of them.

modern cases judges have refused to direct certain Legitimate use artificial presumptions to be made (1). Still, when restrained within their legitimate limits, presumptions of this kind are not without their use. The supposing absurdities, in order to meet the exigency of a particular case, must ever be fraught with mischief; but it is evidently different when, in conformity to a settled rule of practice, juries are directed to presume the existence of ancient documents, or the destruction of formal ones, or to make other presumptions on subjects necessarily removed from ordinary comprehension, but which the rules of law require to be submitted to and determined by them instead of the court, within whose province they would, perhaps, more properly come. Both judges and juries are frequently compelled, in obedience to the Statutes of Limitations and the strict presumptions of law, to assume as true facts which in reality are not so, and the ends of justice may render a similar course necessary in the case of those mixed presumptions which, although not technically, are virtually made by law. Some of the most important of these presumptions have in modern times been erected by the legislature into fixed rules of law (m).

Direction to

presumptions

fact and of

§ 315. The terms in which presumptions of fact and juries respecting mixed presumptions should be brought under the consideration of juries by the court depend on their weight, either natural or technical. When the presumption is one which the policy of law and the ends of justice require to be made, such as the existence of moduses, and

mixed law and fact.

(1) Doe d. Fenwick v. Reed, 5 B. & A. 232; Doe d. Howson v. Waterton, 3 Id. 149; Doe d. Hammond v. Cooke, 6 Bingh. 174; Wright v. Smithies, 10 East, 409; R. v. The Chapter of Exeter,

12 A. & E. 512.

(m) See 3 & 4 Will. IV. c. 42, s. 3; infra, sect. 2, sub-sect. 6: 2 & 3 Will. IV. cc. 71 and 100; infra, sect. 2, sub-sect. 3.

other immemorial rights, from uninterrupted modern user, the jury should be told that they ought to make the presumption unless evidence be given to the contrary-it should not be put to them as a matter for their discretion (n). And the same seems to apply where the presumption is one of much natural weight and frequent occurrence, as where larceny is inferred from the recent possession of stolen property, &c. In the case of presumptions of a less stringent nature, however, such a direction would be improper; and perhaps the best general rule is, that the jury should be advised or recommended to make the presumption (o). To lay down rules for all cases would of course be impossible; but the language of the courts, expressed in decided cases in regard to particular presumptions, may in general be expected to exercise considerable influence in the determination of future cases in which the like presumptions may arise (p).

§ 316. It has been already stated (q), as a characteristic distinction between presumptions of law and presumptions of fact, either simple or mixed, that when the former are disregarded by a jury a new trial is granted as matter of right (r), but that the disregard of any of the latter, however strong and obvious, is only ground for a new trial at the discretion of the court in banc. Now, although questions of fact are the peculiar province of a jury, still the courts, by virtue of their general controlling power over every thing that relates to the administration of justice (s), will usually grant a new trial

(n) Jenkins v. Harvey, 1 C. M. & R. 877. See, however, per Lord Denman in Brune v. Thompson, 4 Q. B. 543.

(0) See R. v. Joliffe, 2 B. & C. 54.

(p) Phil. & Am. Ev. 461; 1 Phill. Ev. 470, 10th Ed.

(9) Supra, sub-sect. 1, § 293.
(r) Phill. & Am. Evid. 459;
1 Phill. Ev. 467, 10th Ed.; Tin-
dal v. Brown, 1 T. R. 167.

(s) Goodwin v. Gibbons, 4 Burr.
2108; Burton v. Thompson, 2
Burr. 664.

New trials for disregard by juries of presumptions of fact, or of mixed

law and fact.

D D

when an important presumption of fact, or mixed presumption, has been disregarded by a jury. But new trials will not always be granted when successive juries disregard such a presumption; and the interference of the court in this respect will depend very much upon circumstances. As a general rule, it may be stated that probably not more than one or two new trials would be granted (t). There are, however, some mixed presumptions which the policy of the law, convenience and justice so strongly require to be made that the courts will go much farther in order to uphold them. The principal among these are the existence of prescriptive rights and grants from long and continued possession, &c. (u) It is, however, rather a strong proposition to lay down, as is sometimes done (x), that the courts would set aside verdicts ad infinitum in such cases. That would be very like setting aside the trial by jury; and where several sets of men on their oaths find in a particular way, it would be more reasonable to presume that it was not without good reason.

(1) Phill. & Am. Evid. 460. See Foster v. Steele, 3 Bing. N.C. 892.

(u) Doe d. Jenkins v. Harvey, 1 C. M. & R. 895, per Alderson,

B.; Gibson v. Muskett, 3 Scott,
N. R. 419.

(x) Gale on Easements, 95, 2nd Ed, &c.

SUB-SECTION III.

CONFLICTING PRESUMPTIONS.

§ 317. It is obvious from what has been said in the preceding parts of this chapter, that the maxim, stabitur præsumptioni donec probetur in contrarium (y), must be understood with considerable limitation. That maxim is obviously inapplicable either to præsumptiones juris et de jure, whose very nature is to exclude all contrary proof, or to those presumptions of fact which have been denominated slight (præsumptiones leviores); and is, therefore, necessarily restricted to such presumptions of law or fact, mixed presumptions, and pieces or masses of presumptive evidence, as throw the burden of proof on the parties against whom they militate.

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§ 318. Rebuttable presumptions of any kind may be Conflicting preencountered by presumptive, as well as by direct evi- sumptions. dence (z); and it not unfrequently happens that the same facts may, when considered in different points of view, form the bases of opposite inferences; in either of which cases it becomes necessary to determine the relative weight due to the conflicting presumptions. The relative weight of conflicting presumptions of law is, of course, to be determined by the court or judge, who should also direct the attention of the jury to the burden of proof as affected by the pleadings, &c., and evidence in each case : and although the decision of questions of fact constitutes the peculiar province of the jury, still they ought, especially in civil cases, to be guided by those rules regu

(y) Co. Litt. 373 b; 2 Co. 48 a; 6 Co. 73 b; Hob. 297; Jenk. Cent. 1, cas. 62.

(z) Brady v. Cubitt, 1 Dougl. 39, per L. Mansfield, C. J.; Jayne v. Price, 5 Taunt. 328, per Heath, J.; R. v. Harborne, 2

A. & E. 540; Rickards v. Mum-
ford, 2 Phillim. 24, 25, per Sir
John Nicholl; Doe d. Harrison
v. Hampson, 4 C. B. 267; Me-
nochius de Præs. lib. 1, quæst. 29,
30, 31; Mascardus de Prob. Concl.
1231.

Rules respect. ing.

Rule 1. Special presumptions take precedence of general ones.

lating the burden of proof and the weight of conflicting presumptions, which are recognized by law and have their origin in natural equity and convenience.

§ 319. The subject of conflicting presumptions seems almost to have escaped the notice of the writers on English law but several rules respecting it have been laid down by civilians. Some of these are, perhaps, questionable (a); but the following appear sound in principle, and, provided they are understood as merely rules for general guidance, and not as of universal obligation, likely to be serviceable in practice.

§ 320. I. Special presumptions take precedence of general ones (b). This is the chief rule; and rests on the obvious principle that, as all general inferences (except, of course, such as are juris et de jure) are rebuttable by direct proof, they will naturally be affected by that which

(a) In addition to those mentioned in this chapter, Menochius gives the following (De Præsumptionibus, lib. 1, quæst. 29; See also Id., De Arbitrariis Judicum, lib. 2, casus 472): "1. Præsumptio quæ à substantiâ provenit, dicitur potentior illâ quæ descendit à solemnitate. 2. Præsumptio judicatur potentior quæ est benignior. 3. Præsumptio judicatur firmior et potentior quæ juri communi inhæret, et illa debilior quæ juri speciali. 4. Præsumptio est validior et potentior quæ verisimilitudini magis convenit. 5. Præsumptio quæ descendit à quasi possessione est potentior illâ, quæ est, quod quælibet res præsumatur libera. 6. Præsumptio est potentior et firmior quæ est negativa, illâ quæ est affirmativa. 7. Præsumptio illa judicatur po

tentior et firmior quæ est fundata in ratione naturali, illâ quæ est fundata in ratione civili. 8. Firmior et validior existimatur illa præsumptio quâ absurda et inæqualia evitantur. 9. Præsumptio quæ ducitur à facto, est firmior et potentior eâ quæ sumitur à non facto. 10. Præsumptio quæ favet animæ, sicque saluti æternæ, potentior et firmior est illâ quâ dicimus delictum non præsumi."

(b) Menochius de Præsumptionibus, lib. 1, quæst. 29, NN. 7 & 8; Id. De Arbitrariis Judicum, lib. 2, casus 472, N. 14, et seq.; Huberus, Præl. Juris Civilis, lib. 22, tit. 3, N. 17; Id. Positiones Juris sec. Pand. lib. 22, tit. 3, N. 24; Mascardus de Probationibus, Concl. 1231, NN. 6 & 7; 2 Ev. Pothier, 332.

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