for the defence was sworn, and said on oath he had given instructions to him to remain in the witness-room till called. His Lordship, without examining the witness, declined to receive his evidence.

Legal Intelligence.

THE SHREWSBURY CASE.-The claim of Lord Talbot to the Earldom of Shrewsbury is now, at length, fairly before the House of Lords, and it will come on for hearing at the earliest possible opportunity. As it directly involves the first and oldest earldom in the land, and indirectly affects estates of the annual value of L.40,000, our readers will readily believe us when we say that the Shrewsbury case will rival in interest and importance the great Douglas and Berkeley cases. The printed document formally asserting the claim on the part of his Lordship has been laid upon the table of the Upper House. It consists of forty-one pages of genealogical and other matter, and is intitled "The case of the Right Hon. Henry John Chetwynd, Earl Talbot, claiming to be Earl of Shrewsbury." It states that the claimant having presented a petition to her Majesty, praying that the title, dignity, and peerage of Earl of Shrewsbury might be declared and adjudged to belong to him, and that a writ of summons to Parliament might issue to him by the title and dignity aforesaid, her Majesty was pleased to refer the said petition, together with the AttorneyGeneral's report thereon, to the House of Peers on the 9th of May 1857, who, on the 11th of May, referred it to the Committee of Privileges to consider and report thereon. It first recites the terms and limitations of the patent under which the earldom was originally conferred, in 1442, upon John Talbot, the great Earl of Shrewsbury, and general of the English army in the wars with France, and carries down the pedigree, step by step, through seven generations, from father to son, in a direct line, until the elder branch of the first Earl's family became extinct on the death of Edward, eighth Earl, without issue male, on the 8th of February 1617. It then shows how, on the failure of the elder line, the earldom descended upon the heirs male of Sir Gilbert Talbot of Grafton, K.G., as representative of Gilbert, third son of the second Earl, and was enjoyed by them successively down to the year 1856, when it became extinct by the death of Bertram Arthur Talbot, the late Earl, at Lisbon. It further recites, that Earl Talbot now claims to be entitled to the earldoms of Shrewsbury, Wexford, and Waterford, as nearest heir male of the said Sir Gilbert Talbot, through the second marriage of his son John, and, consequently, as nearest heir male of the body of the first Earl, and that he begs leave to lay before this most hon. House the present case in support of his claim. The case, which is signed by Sir F. Thesiger, Sir F. Kelly, and Mr T. Ellis, barrister-at-law, as counsel for the claimant, alleges that Sir John Talbot of Albrighton, married, as his second wife, Elizabeth Wrottesley, by whom he had issue two sons, of whom the elder died young, while the line was continued by the younger son, John, of Salwarp, who married Olive Sherrington, and whose son, Sherrington Talbot, left, by his second marriage with Mary, daughter of John Washbourne, three sons, of whom the two elder died without leaving issue, and that the line of descent was continued by the third son, William, some time Bishop of Durham. He was the father of Charles Talbot, Lord Chancellor of England, who was raised to the peerage in 1733 as Lord Talbot, and whose son, created Earl Talbot of Ingestre in 1784, was grandfather of the present claimant. We understand that the opponents of his Lordship's claim are three in number-first, the Duke of Norfolk, as guardian of the interest of his infant son, to whom the late Earl bequeathed his magnificent property at

Alton Towers; secondly, the Princess Doria Pamphili of Rome, as only surviving child of John, sixteenth Earl; and thirdly, Major Talbot, of Castle Talbot, county Wexford, as a rival claimant to the title. In the event of Earl Talbot being able to establish his claim to the earldom of Shrewsbury to the satisfaction of the Committee of Privileges, his Lordship will become Premier Earl of England, and also of Ireland, as also Earl of Wexford and Waterford; and then, we imagine, a further suit will have to be entered upon before the Court of Chancery for possession of the Shrewsbury estates at Alton, and other places in the counties of Stafford, Oxford, Worcester, and Berks. In case, however, the House of Lords should decide that his Lordship's claim is "not proven," the other claim, namely, that of Major Talbot, will be submitted for their Lordships' decision. The gallant Major, as we understand, traces his pedigree up to William, fourth son of George, the fourth Earl, who was made a Knight of the Garter for his valiant conduct at the Battle of Stoke, June the 16th, 1447.-Times.

INNS OF COURT EXAMINATION.-At the public examination of the students of the Inns of Court, held at Lincoln's Inn Hall, on the 19th, 20th, and 21st days of May, the Council of Legal Education awarded to Arthur Cohen, Esq., student of the Inner Temple, a studentship of fifty guineas per annum, to continue for a period of three years; to George Waugh, Esq., George Colt, Esq., and John W. Vernon Blackburn, Esq., students of Lincoln's Inn-certificates of honour of the first class; to Edmund Sheppard, Esq., and H. I. M. Williams, Esq., students of the Inner Temple; Henry Drake, Esq., student of the Middle Temple; S. Courthope Bosanquet, Esq., and Charles S. Currer, Esq., students of Lincoln's Inn; Frederick A. Inderwick, Esq., student of the Inner Temple; H. C. Folkard, Esq., and W. Halliday Cosway, Esq., students of Lincoln's Inn; Richard L. de Capell Brooke, Esq., and Henry Stone, Esq., students of the Inner Temple-certificates that they have satisfactorily passed a public examination.

THE ESTIMATES-LAW AND JUSTICE.-The Civil Service estimates with reference to law and justice, for the year ending 31st March 1858, have just been printed. For England, they amount to L.810,462; for Scotland, to L.132,960; and for Ireland, to L.762,790; there are also certain sums chargeable on the Consolidated Fund, amounting for Scotland to L.109,268. The items for which the estimates are made are as follows for Scotland :-The Lord Advocate and the Solicitor-General, L.3342; the Court of Session, L. 17,767; Court of Justiciary, L.13,029 (including a grant of L.250 to the Sheriff of Forfar, for the courthouse at Dundee); expenses of criminal prosecutions carried on under the authority of the Lord-Advocate, L.5550; salaries and expenses connected with the legal branch of the Exchequer, L.1480; sheriffs, and procurators-fiscal not paid by salaries, L.37,000; expenses of criminal prosecutions in the Sheriff Courts, L.13,000; salaries of procurators-fiscal, L.11,955 (this includes the fiscals of the following places:-Aberdeen, L.410; Ayr, 630; Kilmarnock, L.580; Dunse, L.400; Dumfries, L.410; Edinburgh, L.1500; Cupar-Fife, L.560; Forfar, L.550; Dundee, L.900; Inverness, L.470; Airdrie, L.450; Paisley, L.450; Jedburgh, L.410; Falkirk, L.630; Stirling, L.630; Stranraer, L.450; Glasgow, L.1925; Perth, L.600.) Salaries of sheriff-clerks not chargeable on the revenues of Customs and Excise, L.9553 (this includes the following items -The sheriff-clerk of Aberdeenshire, L.1200; Berwickshire, L.500; Clackmannanshire, L.320; Dumfriesshire, L.615; Haddingtonshire, L.500; Peeblesshire, L.120; Ross-shire, L.730; Wigtonshire, L.500; Zetland, L.180; Inverness-shire, L.1120; Orkney, L.250; Argyleshire, L.1168.) Sum required to meet the salaries of sheriff-clerks, whose offices are about to be regulated under the Acts 1 and 2 Vict., cap. 119, and 16 and 17 Vict., cap. 80, L.2350. Expenses in matters of tithes, L.2200; General Register House, Edinburgh, salaries and expenses of sundry departments, L.15,067; commissaryclerk, Edinburgh, salaries and expenses, L.1139; accountant in bankruptcy, L.1878.

THE

JOURNAL OF JURISPRUDENCE.

PRESUMPTIVE PROOF.

IN every question of fact which comes before a court of justice, the rule is of universal application, that the best evidence is to be offered of which the nature of the case will admit. Of course, the best evidence is that by which the fact may be immediately ascertained, viz., direct testimony. If, in a case of murder, the witnesses swear that they saw the blow actually struck which proved fatal, or if the obligation in question is proved by the production of the recorded bond, there is no occasion for further inquiry. But the cases are few in number, more especially in criminal jurisprudence, in which, from the studied secresy of the transaction, this evidence is possible. In such an event, therefore, the law is bound to admit proof of the attendant circumstances, so far as they have been brought to light, from which the matter in question may be either inferred or assumed. This is called indirect, circumstantial, or presumptive proof. Its chief disadvantage is, that the result to which it leads, can never be other than a mere probability, varying in certainty, like every other process of inductive reasoning, with the character or the range of the circumstances over which it extends. The law, however, refusing, for the sake of both equity and public convenience, to reject what is true in general, because it may be false in some few particulars, has made up for this want of certainty, by certain rules or presumptions of its own. These, though perfectly arbitrary in their character, form the basis of all judicial action; and the experience of courts of justice has shewn that, without the doctrine of presumptions, the discovery of truth would frequently be impossible, and, in all cases, a most difficult and complicated proceeding.

Presumptions are either presumptiones juris-presumptions of law; or presumptiones hominis-presumptions of fact. The two differ in this, that while a presumption of fact is only a process of inductive or inferential reasoning, presumptions of law are nothing of the kind.

VOL. I.-NO. VII. JULY 1857.

UU

They are arbitrary rules, more fitly named assumptions than presumptions; and leave as little room for the operation of the reason, as those equally arbitrary fictions of the law, which place every person under certain disabilities, till he is fourteen, and invest him with certain privileges till he is twenty-one.

These assumptions of the law are either absolute or conditional. The former (presumptiones juris et de jure) are conclusive on the subject, incapable of being overturned by any evidence whatever. They consist chiefly," says an American writer, "of those cases in which the long experienced connection between facts, has been found to be 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 corroboratory evidence is dispensed with, and all opposing evidence is forbidden."-(1 Gr. Evid. sec. 17.) Of this kind are our assumptions, that every person in the kingdom-native as well as alienknows the law to an extent sufficient for his own guidance, that all our judges know it sufficiently to administer it, that a sane man foresees the consequences of his own acts, and that, under the years of puberty, a child is incapable of consent. In all such cases, there is no inference, the rule of law merely attaches itself to the circumstances absolutely and irreversibly.

2. The presumptions of the second class-presumptiones juris-are conditional or rebuttable. They merely hold good till the contrary is proved. Like the former class, they are founded on general experience; but the connection of the facts being neither so absolute nor universal, proof to the contrary is not only competent, but is admissible, to the effect of completely overthrowing what is temporarily assumed to be fact. Examples of this class are, that every person is innocent till he is proved to be guilty-the presumption in favour of sanity and of life-the rule that pater est quem nuptiae demonstrant, rebuttable by proof of the impossibility of access during the marriage--the presumption in favour of morality, as in cases of marriage, founded on cohabitation, the presumption is in favour of the legality of the intercourse, unless in its origin it was known to be illicit, when the presumption is turned the other way-and the presumption that a bill imports consideration which may be set aside by proof of the contrary. Here, again, the rules are quite arbitrary, and have nothing in them of an inferential character. The presumption which the law makes in the above circumstances, is nothing more than a definition of the quantity of evidence that will be necessary to make out a prima facie case, so that the party charged may be put on his defence. The onus of proof is always thrown on the prosecutor or pursuer; but he has only to make out a prima facie case, for an imperfect proof, from which the defender might clear himself, becomes perfect by being left uncontradicted or unexplained.-(Beccaria.) At

the same time, in the language of L. C. J. Abbott-" In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded either of explanation or contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him in the absence of explanation and contradiction."—(Rex v. Burdett, 4 B. and A. 161.) What is evidence sufficient to form a prima facie case, that will shift the burden of proof, is a question influenced by the specialties of every branch of our jurisprudence. For instance, the holder of a bill makes out his claim sufficiently, by the simple production of the document. If liability is denied by the defender, the onus then lies on him of shewing either that the signature is not his-that the bill was granted without consideration or that it has been already paid. Thus, the application of the principle is modified by the peculiar features of every case in which it is stated, but generally, the whole subject is reducible to these rules :-(1.) That, every pursuer being bound to make out his own case, no one can be called on to prove a negative, or, in other words, be put on his defence, till facts are averred and substantiated, which, without explanation or contradiction, would involve liability. (2.) That the affirmative of the issue between the parties, must be made out. (3.) That possession is, prima facie, a good title to property; and (4.) Everything and everybody are, in the absence of evidence to the contrary, to be taken for what they seem or profess to be-a rule which is expressed by the brocard-omnia presumuntur rite et solemniter acta.

Presumptions of fact (presumptiones hominis) are but another name for what is popularly known as circumstantial evidence. They are not peculiar to judicial inquiries; but the very same process is essential to every species of investigation. The facts on which they proceed, range over the whole field of human experience. In them, the fact sought to be established, is no longer assumed, but inferred; according to the ordinary rules with which every process of reasoning is conducted. Presumptions of fact have, therefore, nothing in common with presumptions in law. The sole analogy is in the result to which they lead, by investing a certain quantity of evidence, with a certain probative force, to be inferred in the case of a presumption of fact on the ordinary principles of probability; in the case of a presumption of law to be assumed as likely to be true, though not necessarily so. The distinction was, in a recent case, pointed out with both equal wit and precision, by the Lord President. "After this," said his Lordship, speaking on a question as to a new trial, "the jury retired, dined and deliberated,that they retired and dined is matter of fact; that they deliberated, is matter of legal inference." The nature of this species of indirect proof, as contrasted with direct proof, is very clearly defined by Bentham:-"Evidence is direct, positive, immediate, when it is of such a nature that (admitting its accuracy) it brings with it a