PRESUMPTION OMNIA RITE ESSE ACTA.

103

other suspicious circumstances, it might fully warrant the prisoner's conviction, even though the property was not found in his house until after his apprehension (g). This rule of presumption is not confined to cases of theft, but applies to all crimes, even the most penal. Thus, on an indictment for arson, proof that property, which was in the house at the time it was burnt, was soon afterwards found in the possession of the prisoner, was held to raise a probable presumption that he was present and concerned in the offence (h). The like presumption has been raised in the case of murder, accompanied by robbery (i); in the case of burglary (j) ; and in the case of the possession of an unusual quantity of counterfeit money (k).

§ 100. One of the most important presumptions known to the common law, is that which is usually embodied in the maxim, "omnia præsumuntur ritè esse acta." This presumption, which, in principle, is nearly allied to that of innocence, is, as we have seen (1), in some instances conclusive, but in the great majority of cases to which it applies, it is only available, donec probetur in contrarium. The application of this presumption to acts of an official or judicial character will be best illustrated by referring to one or two decisions. On an indictment for perjury in an answer to a bill in Chancery, proof of the signatures of the defendant, and of the Master in Chancery, before whom the answer purported to have been sworn, has been held sufficient evidence that the defendant was regularly sworn to the truth of its contents, though the clerk, who proved the hand-writing of the Master, had no recollection of administering the oath, and admitted that the jurat was not written by himself (m). A party being detained for debt in

§ 16, for knowingly harbouring and concealing three gallons of foreign Geneva, &c. Abbott, C. J., observed, "The mere naked fact of the spirits being found in the defendant's house during his absence, cannot be considered as conclusive evidence of knowledge to support a conviction on this statute. There is abundant ground for suspicion, but we cannot say that it is a clear and satisfactory ground to convict." See also, R. v. Hale, 2 Cowp. 728.

(g) R. v. Watson, 2 Stark. R. 139, per Lord Ellenborough and Abbott, J.

(h) R. v. Rickman, 2 East, P. C. 1035.

(j) See R. v. Gould, 9 C. & P. 364.

(1) Ante, §§ 68, 69.

(2) Wills Circums. Ev. 72 et seq.

(k) R. v. Fuller, R. & R. 308.

(m) R. v. Benson, 2 Camp. 508, per Lord Ellenborough.

104

PRESUMPTION OMNIA RITE ESSE ACTA.

the gaol of the sheriff of Devonshire, a writ of ca. sa. at the suit of the sheriff was directed to the coroner of the county, and was lodged with the keeper of the gaol. On motion to discharge this party out of custody for irregularity, it did not appear from the affidavits that the writ was ever in the coroner's hands, but in a return which the gaoler had made to a writ of habeas corpus previously issued, the ca. sa. was set out, together with a certificate by the coroner, that this was a true copy of the writ. Upon these facts the court gave such credit to the regularity of the proceedings, as to presume that the writ had in due course come to the gaoler through the coroner (n). So, where a parish certificate purported to be granted by A, the only churchwarden, and B, the only overseer of the parish, the Court, after a lapse of sixty years, during which time the appellant parish had submitted to the certificate, presumed in its favour that, by custom, there was only one churchwarden in the parish, and that two overseers had been originally appointed, but that one of them was dead, and his vacancy not filled up at the date of the certificate (o). A like presumption was made in favour of a parish indenture of apprenticeship, which was signed only by one churchwarden, and one overseer (p). So, where the deed of apprenticeship, executed thirty years before, and under which the apprentice had regularly served his time, was proved to be lost, and it further appeared that the parish, in which the pauper was settled under this indenture, had relieved him for the last twelve years, the Court considered that the sessions had acted rightly, in presuming that the deed was properly stamped, though the stamp officers proved that it did not appear in their office, that any such indenture had been stamped during the last thirty-one years (q).

(n) Bastard v. Trutch, 3 A. & E. 451 ; 5 N. & M. 109; 4 Dowl. 6, S. C. (0) R. v. Catesby, 2 B. & C. 814; see also R. v. Whitchurch, 7 B. & C. 573. From R. v. Upton Gray, 10 B. & C. 807, it appears that this presumption is rather one of fact than of law; and, indeed, this may be said of several presumptions, which, from motives of convenience, have been treated under the present head. The distinction, however, being one only of degree, is not very material, and is by no means well-defined. (p) R. v. Hinckley, 12 East, 361.

(q) R. v. Long Buckby, 7 East, 45. In this case, as also in that of R. v. Catesby, 2 B. & C. 814, the judgment of the court partly rested on the presumption of validity arising from long acquiescence. See ante, § 69.

PRESUMPTION OMNIA RITE ESSE ACTA.

105

§ 101. In like manner every reasonable intendment will be made in support of an order of justices, provided it appear on the face of the order that the justices had jurisdiction (q); but this rule does not extend to convictions, which combining, as they do, summary power with penal consequences, are watched with peculiar vigilance by the superior courts, and are construed with at least as great strictness as indictments (r). Still, even with respect to convictions, if the authority of the magistrate can be distinctly collected from the facts stated on the record, the Court will not be astute in discovering irregularities in the proceedings, and the safest rule which can be laid down on this subject, is, in the words of Lord Ellenborough, that the Court "can intend nothing in favour of convictions, and will intend nothing against them" (s).

§ 102. Neither does this presumption apply so as, in any event, to give jurisdiction to inferior courts, or to magistrates, or others acting under a special statutory power; but in all such cases, every circumstance required by the statute to give jurisdiction must appear on the face of the proceedings (t). There is no distinction, in this respect, between convictions, commitments, examinations, and orders (u); and whether the order be made by the Lord Chancellor, under the special act, or by a justice of the peace, the facts which gave the authority must be stated (v). But though the Court of Queen's Bench, in the exercise of their superintending power, will intend nothing in favour of inferior jurisdictions, they will intend nothing against them, but will decide according to the very language employed in the order or other judicial

(q) R. v. Morris, 4 T. R. 552, per Lord Kenyon.

(r) Id.; R. v. Baines, 2 Lord Raym. 1265, 1269; Fletcher v. Calthrop, 6 Q. B. 880, 891; R. v. Little, 1 Burr. 613, per Lord Mansfield; R. v. Corden, 4 id. 2281, where the Court observed that "a tight hand ought to be holden over these summary convictions"; R. v. Pain, 7 D. & R. 678, per Abbott, C. J.; R. v. Daman, 2 B. & A. 378.

(8) R. v. Hazell, 13 East, 141. See Paley on Convic. 74-77.

(t) R. v. All Saints, Southampton, 7 B. & C. 790, per Holroyd, J.; R. v. Helling,

1 Stra. 8, per Pratt, C. J.; R. v. Hulcott, 6 T. R. 583.

(u) Day v. King, 5 A. & E., 359, per Williams, J.; Brook v. Jenney, 2 Q. B. 273, per id.; Johnson v. Reid, 6 M. & W. 124.

(r) Christie v. Unwin, 11 A. & E. 379, per Coleridge, J.

106

PRESUMPTION OMNIA RITE ESSE ACTA.

document (w). On motions for a prohibition, the Court of Queen's Bench have more than once emphatically rejected any intendment that the Ecclesiastical Courts would outstep their duty, or act in any way inconsistently with the law (x); and on the same principle they have refused to anticipate the decision of the master on a question of costs, as they cannot presume that he will decide erroneously (y).

§ 103. This presumption has, in many instances, been recognised in support of the solemn acts of even private persons, but a reference to a few of the more modern cases, will, it is hoped, be sufficient to illustrate its operation in connection with such acts. Thus, although in the case of contracts not under seal a consideration must in general be averred and proved, yet bills of exchange and promissory notes enjoy the privilege of being presumed, primâ facie, to be founded on a valuable consideration (z). The law raises this presumption in favour of these instruments, partly, because it is important to preserve their negotiability intact, and partly, because the existence of a valid consideration may reasonably be inferred, from the solemnity of the instruments themselves, and the deliberate mode in which they are executed (a). So, if secondary evidence is admitted to prove the contents of an instrument, which is either lost, or retained by the opposite party after notice to produce it, the Court will presume that the original was duly stamped, unless some evidence to the contrary be given (b). So, in the absence of all proof, as to which of two deeds of even date was first executed, the Court will presume in favour of that order of priority, which will best support the clear intent of the parties (c). So, in an action of ejectment brought

(w) R. v. Helling, 1 Stra. 8, per Pratt, C. J.; Christie v. Unwin, 11 A. & E. 379, per Coleridge, J.; In re Clarke, 2 Q. B. 630, per Lord Denman.

(x) Chesterton v. Farlar, 7 A. & E. 713; Hall v. Maule, id. 721; Hallack v. U. of Cambridge, 1 Q. B. 593, 614, 615. (y) Head v. Baldry, 8 A. & E. 605. (2) Collins v. Martin, 1 B. & P. 651; Holliday v. Atkinson, 5 B. & C. 501 ; Story on Bills of Ex. §§ 16, 178. See ante, § 68.

(a) Story on Bills of Ex. §§ 16, 178.

(b) Hart v. Hart, 1 Hare, 1, per Wigram, V. C.; Pooley v. Goodwin, 4 A. & E. 94; Crisp v. Anderson, 1 Stark. R. 35; R. v. Long Buckby, 7 East, 45.

(c) Taylor v. Horde, 1 Burr. 107.

PRESUMPTIONS RESPECTING EXECUTION OF DEEDS.

107

upon the assignment of a term by the defendant to secure the payment of an annuity to the lessor of the plaintiff, the Court will presume that the annuity has been duly enrolled (c), and the party relying on the want of the enrolment, must prove the negative "it is like the case of a proviso in an Act of Parliament, in which it is a settled rule, that the party wishing to avail himself of it, must bring himself within it" (d). But no such presumption will be made in favour of conveyances for charitable uses, even after a long and undisturbed enjoyment (e). The distinction between these cases appears to be, that the Annuity Acts do not prohibit the conveyance of lands to secure the payment of annuities, but the Mortmain Act (ƒ) renders void all gifts of realty to charitable uses, unless by deed indented, executed, and enrolled agreeably to the provisions therein contained.

§ 104. In like manner where the attestation of a deed has been in the usual form, and the signature of the party has been proved, the jury have more than once been advised to presume a due sealing and delivery, and that in cases where the attesting witness has denied all recollection of any other form been gone through beyond the mere signing (g). Neither is it necessary, in order to constitute a valid sealing, that an impression should be made with wax or with a wafer, but an impression made in ink with a wooden block will suffice (h); and even though no impression appear on the parchment or paper, still, if the instrument be a deed, and on proper stamps, and be stated in the attestation

(c) Doe v. Mason, 3 Camp. 7, per Lord Ellenborough, which was a decision on the 17 Geo. 3, c. 26; Doe v. Bingham, 4 B. & A. 672, which was on the act of See London and Brighton Railway Co. v. Fairclough,

53 Geo. 3, c. 141.

2 M. & Gr. 674.

(d) Per Bayley, J., in Doe v. Bingham, 4 B. & A. 676.

(e) Doe v. Waterton, 3 B. & A. 149; Wright v. Smythies, 10 East, 409. (f) 9 Geo. 2, c. 36.

(g) Fasset v. Brown, Pea. R. 23; Grellier v. Neale, id. 146, per Lord Kenyon; Talbot v. Hodson, 7 Taunt. 251; Burling v. Paterson, 9 C. & P. 570, per Patteson, J.; Davidson v. Cooper, 11 M. & W. 784, per Lord Abinger. This presumption, though formerly treated as one of law, is now properly considered as one of fact, and the question is in all cases left to the jury. See n. (o) to § 100, ante. (h) R. v. St. Paul Covent Garden, 7 Q. B. 232.