A TREATISE ON PRESUMPTION AND PRESUMPTIVE EVIDENCE, AS AFFECTING THE TITLE TO REAL AND PERSONAL PROPERTY. INTRODUCTORY CHAPTER. PRESUMPTION is a principle of law, by which, for the furtherance and support of right, facts not established by positive evidence are inferred from circum stances. Presumptions are of two kinds ;-presumptions of law, and presumptions of fact. Presumptions of law are suppositions or opinions previously formed on questions of frequent occurrence-being found from experience to be generally accordant with truth—and remain of force until repelled by contrary evidence. Presumptions of fact are conclusions drawn from particular circumstances. It is observable that, formerly, many of the presumptions of law were considered too powerful to admit of contradiction: but this doctrine is now confined principally, if not altogether, to cases of estoppel. (a) The grounds upon which legal presumptions rest, are various. They are founded, in some cases, on the laws of nature, and the first principles of justice; in others, on the nature and general incidents of property; and in others, on those innate principles of self-interest, and dictates of prudence or discretion, which for the most part actuate the conduct of mankind: As that a man who has lost the faculty of reason continues subject to the deprivation;(1) that a child born in wedlock is legitimate; that possession of property carries with it the right of beneficial enjoyment; that on the offer of a benefit, acceptance will not be refused; that words are used in their established meaning ;-in all which instances, the supposition of law springs from one or other of the sources above enumerated. Other legal presumptions originate in the policy of the law. Of this description, however, as they relate to questions of property, examples are rare; the principal, if not the only instances, being the presumption in favour of the raising of cross remainders, where land is devised to two persons as tenants in common in tail; and the contrary when to more than two; and the presumption that money borrowed by (a) Phillips on Evidence, 6th edit. 146. (1) So the sanity of a testator is to be presumed, Jackson ex dem. Van Dusen v. Van Dusen, 5 Johns. 144. Hodge v. Fisher et al, 1 Peters, 163. Jackson ex dem. Cadwell v. King, 4 Cowen, 207. Temple et al. v. Temple, 1 Hen. & Munf. 476. husband and wife, on security of the wife's estate, is appropriated exclusively by the husband. Another class of legal presumptions, and perhaps [*] the most important, comprises all those cases in which an act, that may have proceeded from one or other of several motives or intentions, is, in the absence of explanation by the party, referred to that which appears most consonant with reason and probability. Thus, where tenant in tail pays off an encumbrance, he is considered to do so in exoneration of the estate; because, possessing the power of acquiring the absolute dominion, he has no immediate interest in keeping the charge on foot: but the case is reversed with tenant for life; his discharging an encumbrance is not accounted to be done for the benefit of the estate, but for his own convenience, in order that he may occupy the encumbrancer's place. So where a person, under obligation to do an act, does what, though not necessarily a satisfaction, admits of being so construed; the presumption is, that a satisfaction was intended: the fulfilling of a duty being supposed to precede the collation of a benefit. On this ground also covenants are held to be discharged by what is tantamount to performance; and debts, portions, and legacies, to be satisfied by equivalent provisions (a) (1). (a) That presumptions of this of law, see 3 Bro. C. C. 63.; 1 kind are considered presumptions Ves. jun. 108. (1) Gardner v. Aston, 3 John. Ch. 55. 475. James v. James, 6 John. Ch. 417. Freeman v. Paul, 3 Greenl. 260. Mills v. Comstock, 5 John. 214. 246. 448. Gibson v. Crehore, 3 Pick. James v. Mory, 2 Cow. Myers v. Brownell, 1 Chip. Dexter v. Harris, 2 Mason, Presumptions of fact, it was observed, are conclusions drawn from particular circumstances. The circumstances which form the basis of these presumptions, are designated presumptive evidence. They are such as are found by experience to be usually consequent upon, or co-incident with the facts presumed. [*]And as presumptions of the present description are made upon the common principles of induction, they must of necessity, correspond with, and be adequate to, account for, the circumstances actually proved. Accordingly, in the absence of every thing to negative the supposition, the origin of existing rights and interests, which could have been lawfully acquired only under grants from previous owners, is referred to regular assurances; and the determination of interests formerly subsisting, but of late unclaimed, is ascribed to releases, or other effectual means of discharge. In this way, support is given to titles, which, though actually good, have become defective by the loss or decay of written documents, or the death of witnesses; and the re-assertion of old pecuniary and other satisfied claims is prevented, although the direct evidence of their having been satisfied be lost. (1) To enumerate the several grounds or evidences of 531. Burnet v. Denniston, 5 John. Ch. 35. Ellisthorp v. Dewing, (1) Legal presumptions generally apply to facts of a transitory character, the proper evidence of which is not usually preserved with care, but not to records or public documents in the custody of officers charged with their preservation and safe keeping, unless proved to have been lost or destroyed. Brunswick v. M'Kean, 4 Greenl. 511. |