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was deficient—the great Leibnitz would not have been an exception to this legal presumption, although it might have been demonstrated that as to him it was evidently false, and that at twenty his reason was very superior to that of most people at thirty.

3066. Among the numerous cases where the presumption of law is conclusive may be mentioned the following:

When the legislature has so declared ; thus, by the statute of limitations when a debt has been created by simple contract, and it has not been distinctly recognized or acknowledged within six years as a subsisting obligation, no action can be maintained upon it; the law conclusively presumes it to have been paid.

The rules of the common law, established and declared through the medium of judicial tribunals, have equal validity. The uninterrupted enjoyment of an incorporeal hereditament for a period beyond the memory of man is a conclusive presumption of a prior grant of that which has been so enjoyed ; if you permit me to have a right of way over your land, and I enjoy it not only unin

a terruptedly, but exclusively, and adversely to your rights, for a sufficient length of time, this is a conclusive presumption of title in me.

Conclusive presumptions are made in favor of judicial proceedings; thus, the records of a court of justice are presumed to have been correctly made, and they are said to import absolute verity; res judicata pro veritate accipitur. 31 And those facts without which a verdict could not have been found will be presumed to have been proved, though they were not expressly and distinctly alleged upon the record, provided that it contains general terms to comprehend them by a fair intendment. 32

It is conclusively presumed that a sane man intends to do what will be the probable consequences of his acts; the deliberate publication of slanderous words which the publisher knows to be false, or which he does not know to be true, raises a conclusive presumption of malice.33

Ancient deeds and wills more than thirty years old, if unblemished and unaltered, are said to prove themselves; the subscribing witnesses are presumed to be dead.34 But in the case of deeds possession must have accompanied them.

An estoppel is such a presumption of law that a party bound by it cannot disprove it.56 A conclusive presumption of legitimacy arises where a man and a woman are

Tyler v. Wilkinson, 4 Mas. C. C. 397; Hill v. Crosby, 2 Pick. Mass. 466; Strickler v. Todd, 10 Serg. & R. Penn. 63, 69; Best, Pres. 103, note (m); Rooker v. Perkins, 14 Wisc. 79. The length of time requisite to cause a presumption of the grant of an easement is in general the same as the period of limitation of the right of bringing a writ of entry. This is in general twenty years. Anything less is not even primâ facie evidence of a grant. 2 Washburn, Real Pro. 48.

Dig. 50, 17, 207; Reed v. Jackson, 1 East, 355. 32 Jackson v. Pesked, 1 M. & S. 234. Similar to this is the rule omnia præsumuntur rite esse acta, that is, that proceedings not of record, but quasi judicial, as the acts of justices of the peace, municipal bodies, executors, are legal and authorized and accompanied with the proper formalities. Randall v. Bowden, 48 Me. 37; Webber v. Gottschalk, 15 La. Ann. 376; Carlisle v. Gaar, 18 Ind. 177; Outlaw v. Davis, 27 Ill. 467; Rowan v. Lamb, 4 Greene, Towa, 468; Nelson v. People, 23 N. Y. 293; Tharp v. Commonwealth, 3 Metc. Ky. 411.

* Weckerly v. Geyer, 11 Serg. & R. Penn. 39; Fisher v. Clement, 10 Barnew. & C. 472; Bowdell v. Osgood, 3 Pick. Mass. 379; Hare v. Wilson, 9 Barnew. & C. 643. So if one strikes another with a deadly weapon, so that he dies, he is conclusively presumed to have intended his death; and if no other facts appear, he is presumed to have done it with malice. Commonwealth v. York, 9 Metc. Mass. 93. But see State v. McDonnell, 32 Vt. 491.

34 Tr. per. Pais, 370; Winn. v. Patterson, 9 Pet. 674; Bank of U. S. v. Dandridge, 12 Wheat. 70.

* Plowd. 6; Bank of Middlebury v. Rutland, 33 Vt. 414. 36 1 Greenleaf, Ev. & 22. The maker of a deed is estopped to deny any thing stated







married and cohabit together; the children of the wife will be considered as legitimate, and proof of the mother's irregularities will not destroy the presumption : pater is est quem nuptiæ demonstrant. But this presumption may be rebutted by showing circumstances which render it impossible that the husband should be the father, 57 as impotency and the like.

It is a legal presumption that certain persons cannot commit certain crimes ; in this class is an infant under the age of seven years, who cannot commit a larceny; a male infant under fourteen cannot commit a rape; a wife while in the company of her husband cannot commit a felony: it is presumed she acts by his coercion.

3067. Inconclusive presumptions are those which may be overcome by opposing proof. These, like the former, are the result of the general experience of mankind, that there is connection between certain facts and things, the one being usually the companion or the effect of the other. Of this class of presumptions the following are a few of the numerous examples:

The law presumes that he who has possession of personal property is the owner of it; but possession of personal property, lately stolen, is primâ facie evidence of guilty possession, and if unexplained is taken as conclusive.

In like manner, possession of a bill of exchange by the acceptor, of a promissory note by the maker, will be a presumption that they have been paid ; 38 a deed found in the possession of the grantee, having on its face the appearance of a regular execution, will be presumed to have been delivered by the grantor. Every man is presumed innocent until the contrary is made to appear,

and the rule is so strong that when guilt cannot be established without proving a negative, that must be done, though in general the burden of proof devolves upon the party who makes an affirmative averment; for example, where the plaintiff complained that the defendant who had chartered his ship had put on board articles highly inflammable and dangerous, without giving notice to the master or others in charge of the ship, whereby the vessel was burnt, he was held bound to prove this negative averment.40 In some cases the presumption of innocence is sufficient to overthrow another presumption; as, where, twelve months after her husband's death, a woman married again, it was rightly presumed that the husband was dead at the time of the wife's marriage, although the presumption of his death, in consequence of absence, does not arise till a much later period."

But there is an exception to the rule respecting the presumption of innocence; when a libel has been sold in a book store by a servant in the ordinary course of his employment, the bookseller, or master, will be presumed to have authorized it

, and it will be a guilty publication by him, though an authority to commit a breach of the law is not presumed. This exception is founded on public policy, lest irresponsible persons should be put forward, and the principal and real offender escape.

Another exception to the presumption of evidence arises from the presumption of guilt, by the misconduct of the party, in his destroying evidence which therein which has operated upon the other party as the inducement to accept such deed ; for instance, he is estopped to deny the recitals in the deed. A covenant of warranty estops the warrantor to set up a title acquired afterward. Foss v. Strachn, 42 N. H. 40; Williams v. Swetland, 10 Iowa, 51; Nunnally v. White, 3 Metc. Ky. 584.

37 Commonwealth v. Shepherd, 6 Binn. Penn. 283.
39 Carrol v. Bowie, 7 Gill, Md. 34.
39 Ward v. Lewis, 4 Pia Mass. 518; Lawrence v. Minturn, 17 How. 100.

40 Williams v. E. Ind. Co., 3 East, 192; Buller, Nisi P. 298. See Rex v. Hawkins, 10 East, 211; Powell v. Milburn, 3 Wils. 355; Rodwell v. Redge, 1 Carr. & P. 220. See Bouvier, Law Dict. Death.

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he ought to produce, or to which the opposite party is entitled ; as, if a party should obtain papers from a witness after the latter has been required to produce them under a subpena duces tecum, and refuse to produce them. But a mere withholding of papers by a party is not a presumption of guilt.**

A legal presumption of payment of a debt due by specialty arises when it has been unclaimed and without recognition for twenty years in the absence of any explanatory evidence. But this presumption does not, in general, attach until the completion of the twenty years," but in some cases this presumption of payment has been made after eighteen years, but these cases are probably exceptions to the general rule. This presumption is rebutted by showing that interest has been regularly paid, that the obligor has admitted it had not been paid," or other circumstances to rebut the presumption.

It is presumed that certain things continue as they are until the contrary appears. When the existence of a person, 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, until the contrary is shown, or until a contrary presumption is raised from the nature of the subject. A party once living will not be presumed to be dead until the presumption of death arises, namely, when he has attained one hundred years, or until he has been absent for seven years, without being heard from, when the presumption of life ceases, and the burden of proof is thrown on the other side.

The relation of partnership, or other similar relations, are presumed to continue until a presumption arises of their dissolution."

Seisin once proved is supposed to continue until disseisin is shown.“

The opinions of individuals are presumed to continue the same; and the state of mind, whether sane or insane, once established, is presumed to continue until the contrary appears. In all these cases he who asserts there has been a change, is bound to prove it. 52

When a man makes a payment to another it is presumed to be for a debt due to the receiver, and when he alleges that the payment was made by error he must prove it, for no man is deemed so imprudent as to pay a debt he does not owe. But if he to whom the money was paid denies having received it, and it is proved he did receive it, he will then be required to show that it was given in payment.

When a letter is used in evidence several facts are to be proved; first, that it was written by the party by whom it purports to be, second, that it was sent, third, that it was received by the party to whom it is addressed. A post mark is prima facie evidence that it was sent. 54 Proof that it was sent causes a presumption that it was received ; 6 but this presumption is not conclusive 56





12 Leeds v. Cook, 4 Esp. 256.
43 Hanson v. Eustace, 2 How. 653

44 Oswald v. Leigh, 1 Term, 270. *5 Rex v. Stephens, 1 Burr. 434; Clark v. Hopkins, 7 Johns. N. Y. 556.

Nixon v. Bynum, 1 Bail. So. C. 148. * 2 Harr. Dei. 124; Mathews, Pres. c. 19, 20; Best, Pres. part 1, c. 2, 3. 48 9 Mart. La. 257.

Hopewell v. De Pinna, 2 Campb. 113; Loring v. Steinman, 11 Metc. Mass. 204; Innis v. Campbell, 1 Rawle, Penn. 373; Winship v. Conner, 42 N. H. 341; Rice v. Lumley, 10 Ohio, St. 596.

50 Eames v. Eames, 41 N. H. 177. So of marriage. Erskine v. Davis, 25 Ill. 251. 61 Brown v. King, 5 Metc. Mass. 173.

52 1 Greenleaf, Ev. & 42; Perkins v. Perkins, 39 N. H. 163; Lilly v. Waggoner, 27 Ill. 395.

53 1 Domat, Lois Civiles, liv. 3, t. 6, s. 4, n. 10.
54 New Haven Bank v. Mitchell, 15 Conn. 206.
55 Commonwealth v. Jeffries, 7 All. Mass. 548.
66 Greenfield Bank v. Crafts, 4 All. Mass. 447; Loud v. Merrill, 45 Me. 516.


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When a contract is to be governed by foreign laws, in the absence of other proof such laws are presumed to be the same as the laws of the state in which the suit is brought. But this presumption will not prevail if it makes the

” contract illegal.58

3068. Natural presumptions or presumptions of fact depend upon their own form and efficacy in generating belief or conviction on the mind, as derived from those connections which are pointed out by experience; they are independent of any artificial connections, and differ from mere presumptions of law in this essential respect, that the latter depend on and are a branch of the particular system of jurisprudence to which they belong; but mere natural presumptions are derived wholly by means of the common experience of mankind, without the aid or control of any particular rule of law, but simply from the course of nature and the habits of society.

These presumptions fall within the exclusive province of the jury, who are to pass on the facts; in this they are aided by the advice and instructions of the court.

3069. Hearsay is that kind of knowledge which the witness states he has received or heard from others. It relates to that which is written as well as to what is spoken ; it does not derive its value solely from the credit given to the witness himself, but rests also in part on the veracity or competency of some other person. This kind of evidence is not competent to establish any specific fact which from its nature is susceptible of proof by witnesses who speak of their own knowledge."

Difficulties frequently arise in discriminating whether the evidence offered is original or hearsay evidence. What has been written or said by a third person is not necessarily hearsay evidence when proved by a witness as having been so said or written. On the contrary, the very point in controversy is not unfrequently whether such things were written or spoken, and not whether they were true; and in other cases such language or statements, whether written or spoken, may be the natural and inseparable concomitants of the principal fact in dispute. In such cases it is obvious that the writings or words are not within the meaning of hearsay, but are original and independent facts, admissible in proof of the Whenever the fact that such a communication was made, and not its truth or falsity, is the matter in controversy, the evidence to establish it will be considered as original. Upon this principle evidence of general reputation, reputed ownership, public rumor, general notoriety, and the like, though composed of the speech of a person not under oath, is original evidence, and not hearsay, the subject of inquiry being the concurrence of many voices to the same fact.

3070. There is a species of evidence which, although generally classed under the head of hearsay evidence, is original evidence; it is used not as a medium of proof to establish a distinct fact, but as being in itself a part of the transaction in question, when it is a part of the res gestae, or the subject matter of inquiry, or things done. Upon an inquiry as to the state of mind, sentiments, or dispositions of a person at any particular period, his declarations and conversa


Sharp v. Sharp, 35 Ala. N. s. 574; Locke v. Huling, 24 Tex. 311; Rape v. Heaton, 9 Wisc. 328; Atkinson v. Atkinson, 15 La. Ann. 491; Hickman v. Alpaugh, 21 Cal. 225; Crake v. Crake, 18 Ind. 156; Cooper v. Reaney, 4 Minn. 528.

58 Smith v. Whitaker, 23 Ill. 367.
59 Mima Queen v. Hepburn, 7 Cranch, 290.

1 Greenleaf, Ev. & 100. 61 See Bouvier, Law Dict. Character ; Foulkes v. Sellway, 3 Esp. 236; Du Bost v. Beresford, 2 Campb. 512; Oliver v. Bartlett, 1 Brod. & B. 269; Carpenter v. Leonard, 3 All. Mass. 32; King v. Woodbridge, 34 Vt. 565.





tions are admissible as part of the res gestae.62 So on an indictment for a rape; what the girl said so recently after the fact as to exclude the possibility of practicing on her has been held to be admissible evidence as a part of the transaction.63

The first requisite to constitute declarations a part of the res gesta is that they must be made at the time of the act done. They must also be so connected with it as to illustrate its character and constitute one transaction with it.65 Declarations made by one in possession of property qualifying or explaining his title, if made in good faith, are admissible as part of the res gestae, their effect being governed by other rules of evidence. The same principles apply to con

66 spirators: the fact of conspiracy being first established, the declarations of one conspirator in carrying out the object of the conspiracy are admissible against all the others.7 Declarations of partners 68 and agents come under the same rule, and are admissible as original evidence when they constitute part of the res gestae.

3071. Although generally classed as hearsay, yet, if properly considered, the evidence usually given in cases of pedigree will be found to be original evidence. The question is the descent or parentage of the individual; and in arder to ascertain the fact it is important to know how he was treated and acknowledged by those who were interested in him or sustained toward him


relation of kindred or affinity. This may be shown by proving the declarations of deceased persons who were related by blood or marriage to the person, and therefore interested in the succession in question; the declarations of all other persons are excluded.70

General repute in the family, proved by a living member of it, is evidence of pedigree.

Pedigree is the state of a family as far as regards the relationship of the different members, their births, marriages, and deaths, and the time when these events happened. These facts may be proved not only by living witnesses who heard of them from other members of the family, but also by the proof of written documents where the facts are stated. Thus, an entry by a deceased parent or other relative made in a family Bible or missal, or any other book, or document, or paper, stating the fact and date of the birth, marriage, or death of a child or other relative, is considered as the declaration of such parent or relative in a matter of pedigree.72

62 Barthelemy v. The People, 2 Hill, N. Y. 248. On the trial of Lord George Norton for treason, the cry of the mob, who accompanied the prisoner on his enterprise, was received in evidence as forming a part of the res gestæ, and showing the character of the principal fact. 21 How. St. Tr. 542.

63 East, P. C. 414. 64 Faner v. Turner, 1 Iowa, 53; Scraggs v. State, 16 Miss. 722; Noyes v. Ward, 19 Conn. 250; Small v. Gilman, 48 Me. 506.

66 Elkins v. Hamilton, 20 Vt. 627; State v. Shellidy, 8 Iowa, 477; Commonwealth v. Harwood, 4 Gray Mass. 41.

66 Bartlett v. Emerson, 7 Gray, Mass. 174; Potts v. Everhart, 26 Penn. St. 493; Pomeroy v. Bailey, 43 N. H. 118; Beedy v. Macomber, 47 Me. 451; Currier v. Gale, 14 Gray, Mass. 504. But the admissions of a vendor made after the sale are not competent to defeat the title. Cohn v. Mulford, 15 Cal. 50; Myers v. Kinzie, 26 Ill. 36; Derbý v. Gallup, 5 Minn. 119.

67 Commonwealth v. Crowninshield, 10 Pick. Mass. 497; Lee v. Lamprey, 43 N. H. 13; Preston v. Bowers, 13 Ohio, St. 1.

68 Coit v. Tracy, 8 Conn. 268 ; Mamlock v. White, 20 Cal. 598. 69 The Enterprise, 2 Curt. C. C. 317; Mechanics" Bank v. Bank of Columbia, 5 Wheat. 336; Austin v. Chittenden, 33 Vt. 553.

70 Whitelock v. Baker, 13 Ves. Ch. 514; Jewell v. Jewell, 1 How. 231 ; 17 Pet. 213; Cowen & Hill's note to 1 Phil. Ey. 240.

71 Doe v. Griffin, 15 East. 293. 72 1 Phillipps, Ev. 186; 1 Starkie, Ev. 55; The Berkley Peerage Case, 4 Campb. 401; Watson v. Brewster, 1 Penn. St. 381; Douglass v. Sanderson, 2 Dall. 116; Craufurd v. Blackburn, 17 Md. 49.



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