« НазадПродовжити »
the cause and nature of the quarrel which occasioned the separation, and the degree of irritation still subsisting, between the parties, have, on some occasions, been relied on as weighty in this respect. A man and his wife who live apart, to use the language of the judges in the Banbury. Peerage case, may be in the same place, or in the same house, and yet under circumstances, such as, instead of proving, tend to disprove, that any sexual intercourse takes place between them (a). So it has been laid down, that the presumption of access, though fortified by the strong fact of a private interview, is nevertheless open to rebuttal by evidence of the feelings and conduct of the parties, as such feelings and conduct were displayed before and immediately after it (6). And again, it seems, the misconduct of the wife may be adduced as a powerful argument against the supposition of the husband's associating with her : for example, where she lives in open adultery with another man; and, à fortiori, where her child takes the name of that individual, and is brought up by him (6). But generally, it is not from any particular circumstances, [*]singly considered, that the presumption of non-access arises : this, for the most part, is only an inference from all the circumstances taken together; the cogency of proof in such case lying in the consistency and mutual relation of facts, which, viewed by
(a) See 2 Selw. N. P. 5th edit. of a child, which was born within 732. n.
due time afterwards; and the (6) Head v. Head, 1 Turn. 138. child, in consequence, was held to In this case there were no circum- be legitimate. stances to show that a private in (c) See Goodright v. Saul, 4 terview might not be the occasion T. R. 356.
themselves, might perhaps be regarded as comparatively insignificant.
Concerning posthumous children, the rule appears to be this :-if born within the period which, according to the ordinary course of nature, allows the supposition of the deceased husband being the father, the presumption is in favour of the child's legitimacy (a); and as the law does not require a birth to take place at any precise point of time, but only within certain limits, a longer than the usual period of gestation will not prevent the child being proved, from circumstances, to be the husband's offspring (b). But, on the other hand, the mere circumstance of the birth taking place within due time after the husband's death, will not, any more than if he were still living, conclude the question of legitimacy : the intendment of the law in this, as in the cases before treated of may be met by, proof of impotency or non-access (c).
Other presumptions of law, which are founded on the principles of natural justice, are comprehended in the following maxims (1). Odiosa et inhonesta non sunt [*]præsumenda (d); Injuria non præsumitur ; Omnia præsumuntur legitime facta donec probetur in
(a) Co. Litt. 123. b; Palm. 9; sop v. Bowtrell, Cro. Jac. 541 ; Godb. 281.
Palm. 9. () 1 Roll. Abr. 356. l. 10 ; Al (c) See 8 East, 206.
(d) 10 Rep. 56. a.
(1) Phillip's lessee v. Robinson, 2 Tenn. Rep. 421. Hickman v. Boffman, Hard. 362. Hartwell v. Root, 19 Johns. 345. Rodwell v. Ridge, 1 Carr. 220.
contrarium (a) (1). In these maxims we may not pera haps recognize much of the practical wisdom which directs men in the common affairs of life. The lessons of experience are certainly not characterised by their freedom from suspicion. But it must be remembered, that when the conduct of individuals is brought in question for the purpose of redress or punishment, the decisions should be governed by principles very different from those, which, as being merely precautionary, are properly adopted in our intercourse with one another.
From the above-mentioned maxims it follows, that in all cases of alleged wrong, whether the offence imputed consist in acts of fraudulent dealing or of open injury-in the breach of a moral precept, or of a positive law-the party charged has the supposition of innocence in his favour. And this principle, even in a civil point of view, possesses considerable influence. For every case, in which transactions, impeached on the ground of fraud, are, from want of proof, or length of delay, allowed to stand,--pro
(a) Co. Litt. 232. b.
(1) Ford v. Gardner et al, 1 Hen. Munf. 72. Where the record is silent as to who did a particular act, it shall be presumed to have been done by the proper officer. Bush's heirs v. Williams et al, 1 Cooke, 360. Where in the return of a commission to take testimony abroad, the commissioners certified that they had taken the oath required, held that it was to be presumed the oath was duly administered by a person of competent authority. Wilson v. Williams, 3 Har. & Johns, 91. The record of a judgment of another state is prima facie evidence that the Court there had jurisdiction. Shumway v. Stillman, 4 Cow. 292. See Dennison v. Hyde, 6 Connect. Rep. 508. Owings v. Beatt, 1 Litt. 259.
ceeds more or less on the assumed uprightness of the defendant's conduct (a). In like manner, where an heir at law is abroad, and the younger brother, on the death of the ancestor, enters on the vacant possession ; such entry, in virtue [*]of the peculiar relation between the parties, is construed not to be tortious, but as made for the purpose of protecting the seisin of the elder brother against abatement by strangers (6):-a consequence of which doctrine is, that if the younger brother die seised, and the estate · descend to his issue, the entry of the elder brother, or his heir, is not tolled (c) (1).
On a similar principle, a charge of an act of immorality or of disobedience to a positive law, will not be received unless supported by direct evidence.(2) Circumstances showing probability merely, are, in such cases, not enough : the fact averred must be conclusively proved. Accordingly, in a case involving a question of legitimacy, where a woman, about twelve months after her first husband was last heard of, married a second time, and had children; the Court of K. B., on appeal from the Sessions, held, that the magistrates did right in presuming the death
(a) Per Lord Keeper Somers (6) Gilb. Ten. 28; Latch, 68. in Bath and Montague's case, 3 Sed. vide Litt. Ten. s. 396. Cha. Ca. 85, 114. See also (c) Litt. Ten. s. 396. Cro. Car. 550.
(1) After a lessee has quitted the premises demised without proof of ever having paid rent, and after fourteen years' possession under conveyances from a lessor, who had a right to enter in default of pay ment, a demand and re-entry will be presumed. Goose v. Demarest, 2 Caines R. 382.
(2) Cusack and wife v. White, 2 Const. R. 282.
of the first husband at the time of the second marriage, and in requiring the party who objected to the validity of the second marriage to bring evidence of the first husband having been then alive (a)(1). So, in another case, where one of the questions was, whether a person had qualified himself for becoming alderman of a borough by taking the sacrament within a year before his election, according to the stat. 13 Cha. 2, c. 12; it was held, that as every one is presumed to have conformed to the law till something appear to repel the presumption, and as there was no evidence to such effect in the [*]principal case, the alderman must be taken to have duly qualified himself, by performing the act required (6). . And again, where the defendant to a suit for tithes by a spiritual rector, objected that the plaintiff had not read the thirty-nine articles on taking possession of the rectory; the Court noticing the presumption of law to be, that the rector had used every proper means to legalize and secure his enjoyment, called on the defendant to verify his assertion (c) (2).
It should however be remarked, in explanation, that although fraud is never presumed, it may not only be established by express proof, of which, from its nature, it is very seldom capable, “but it may
(a) Rex v. Inhabitants of Twy. 211. ning, 2 Barn, and Ald. 386.
(c) Monke v. Butler, 1 Roll. (6) Rex v. Hawkins, 10 East. Rep. 83. See also 2 Anst. 372.
(1) Munroe v. Gardner, 1 Const. R. 328.
(2) Vide Cutter v. Moore, 3 Halst. 219. Lee v, Cooke, 1 Wash. 306. Sissons v. Dixon, 5 B. & Cr. 758. & D. & Ry. 526. Bennett v. Clough, 1 B. & A. 461.