CIRCUMSTANTIAL EVIDENCE.

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be remembered, that, in a case of circumstantial evidence, the facts are collected by degrees. Something occurs to raise a suspicion against a particular party. Constables and police officers are immediately on the alert, and, with professional zeal, ransack every place and paper, and examine into every circumstance which can tend to establish, not his innocence, but his guilt. Presuming him guilty from the first, they are apt to consider his acquittal as a tacit reflection on their discrimination or skill, and, with something like the feeling of a keen sportsman, they determine, if possible, to bag their game. Innocent actions may thus be misinterpreted-innocent words misunderstood; and, as men readily believe what they anxiously desire, facts the most harmless may be construed into strong confirmation of preconceived opinions (h). We do not say that this is frequently the case, nor do we intend to disparage the police. The feelings by which they are actuated, are common to counsel, engineers, surveyors, medical men, antiquarians, and philosophers; indeed, to all persons who first assume that a fact or system is true, and then seek for arguments to support and prove its truth.

§ 56. But, admitting that the facts sworn to are satisfactorily proved, a further and a highly difficult duty still remains for the jury to perform. They must decide, not whether these facts are consistent with the prisoner's guilt, but whether they are inconsistent with any other rational conclusion; for it is only on this last hypothesis that they can safely convict the accused (i).

(h) Ante, § 45.

(i) R. v. Hodge, 2 Lew. C. C. 227.

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PRESUMPTIVE EVIDENCE.

CHAPTER V.

OF PRESUMPTIVE EVIDENCE.

§ 57. THE general head of PRESUMPTIVE EVIDENCE is usually divided into two branches, namely, presumptions of law, and presumptions of fact. PRESUMPTIONS OF LAW consist of those rules, which, in certain cases, either forbid or dispense with any ulterior inquiry. They are founded, either upon the first principles of justice, or the laws of nature, or the experienced course of human conduct and affairs, and the connection usually found to exist between certain things. The general doctrines of presumptive evidence are not, therefore, peculiar to municipal law, but are shared by it in common with other departments of science. Thus, the presumption of a malicious intent to kill, from the deliberate use of a deadly weapon, and the presumption of aquatic habits in an animal found with webbed feet, belong to the same philosophy, differing only in the instance, and not in the principle, of its application. The one fact being proved or ascertained, the other, its uniform concomitant, is universally and safely presumed. It is this uniformly experienced connection which leads to its recognition by the law, without other proof; the presumption, however, having more or less force, in proportion to the universality of the experience. And this has led to the distribution of presumptions of law into two classes, namely, conclusive and disputable.

§ 58. Conclusive, or, as they are elsewhere termed, imperative, or absolute presumptions of law, are rules determining the quantity of evidence requisite for the support of any particular averment, which is not permitted to be overcome by any proof that the fact is otherwise. They consist chiefly of those cases in which the long-experienced connection, before alluded to, has been found so general and uniform, as to render it expedient for the common good, that this connection should be taken to be inseparable and

CONCLUSIVE STATUTABLE PRESUMPTIONS.

65

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 corroborating evidence is dispensed with, and all opposing evidence is forbidden (a).

§ 59. Sometimes this common consent is expressly declared, through the medium of the legislature in statutes. Thus, by the act of 4 & 5 Vict. c. 21, the recital or mention of a deed of bargain and sale, or lease for a year, in a release executed before the 15th day of May, 1841, is rendered conclusive evidence of the execution of such bargain and sale, or lease (b); and a similar provision is contained in the old Irish Act of 9 Geo. 2, c. 5, § 6. So, under the act relating to the duties on malt, any officer of excise, who suspects that the corn or grain making into malt in any cistern or couch-frame has been trodden or forced together, may cause the same to be thrown out and returned; and if on such return the gauge shall prove to be increased in any greater degree than as follows, viz., five per cent. if the grain has not been emptied from the cistern more than eight hours, six per cent. if more than eight but under sixteen hours, and seven per cent. if sixteen hours or upwards; such increase shall be deemed conclusive evidence of the grain having been trodden down or forced together, and the maltster shall thereupon be convicted (c).

(a) The presumption of the Roman law is defined to be,-" conjectura, ducta ab eo, quod ut plurimum fit. Ea conjectura vel a lege inducitur, vel a judice. Quæ ab ipsâ lege inducitur, vel ita comparata, ut probationem contrarii haud admittat; vel ut eadem possit elidi. Priorem doctores præsumptionem JURIS ET DE JURE, posteriorem præsumptionem JURIS, adpellant. Quæ a Judice inducitur conjectura, præsumptio HOMINIS Vocari solet ; et semper admittit probationem contrarii, quamvis, si alicujus momenti sit, probandi onere relevet." Hein. ad Pand. Pars iv. § 124. Of the former, answering to our conclusive presumption, Mascardus observes,-" Super hâc presumptione lex firmum sancit jus, et eam pro veritate habet." De Probationibus, Vol. I. Quæst. x. 48. An exception to the conclusiveness of this class of presumptions is allowed by the civil law, when the presumption is met by an admission in judicio. See post, § 508, n. (b).

(b) § 2. By § 1, a release executed on or after the 15th May, 1841, is rendered as effectual for the conveyance of freehold estates, as a lease and release by the same parties, provided the instrument "shall be expressed to be made in pursuance of this act," and shall be stamped with the additional stamp, to which the lease for a year would have been liable.

(c) 7 Will. 4 & 1 Vict. c. 49, § 5. See R. v. Speller, 17 L. J., N. S., M. C. 9. For other instances, see post, §§ 64, 94.

F

66

STATUTES OF LIMITATION.

§ 60. Thus, too, by the statutes of limitation (d), where a debt has been created by simple contract, and has not been distinctly recognised within six years as a subsisting obligation, either in some writing signed by the party chargeable, or by part payment (e), no action can be maintained to recover it; that is, it is conclusively presumed to have been paid. So, all actions on the case, other than slander, actions of trespass to goods or land, and actions of detinue or replevin, must be brought within a like period of six years after the cause of action shall have accrued (ƒ); and no action can be maintained for an assault or false imprisonment after the lapse of four years (g); for slander after the lapse of two years (h); or for compensation to the families of persons killed by accident, after twelve months from the death of the deceased (i). So actions against persons for anything done by them under the authority or in pursuance of any local and personal act, must be brought within two years after the cause of action shall have accrued, or in the

(d) 21 Jac. 1, c. 16; 10 Car. 1, sess. 2, c. 6, Ir. The first act enacts, in § 3, "that all actions of trespass quare clausum fregit, all actions of trespass, detinue, action sur trover, and replevin for taking away of goods and cattle, all actions of account, and upon the case, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, all actions of debt grounded upon any lending or contract without specialty; all actions of debt for arrearages of rent, and all actions of assault, menace, battery, wounding, and imprisonment, or any of them, shall be commenced and sued within the time and limitation hereafter expressed, and not after, (that is to say), the said actions upon the case, other than slander, and the said actions for account, and the said actions for trespass, debt, detinue, and replevin, for goods or cattle, and the said action of trespass quare clausum fregit, within six years next after the cause of such actions or suit, and not after; and the said actions of trespass, of assault, battery, wounding, imprisonment, or any of them, within four years next after the cause of such actions or suit, and not after; and the said actions upon the case for words, within two years next after the words spoken, and not after." The exception marked in italics has been held by the Court of Exchequer to apply only to an action of account, or perhaps also to an action for not accounting. Inglis v. Haigh, 8 M. & W. 769, 777; 9 Dowl. 817, S.C.; and the Court of Common Pleas, without impugning this decision, has clearly confined it to such accounts as would enable either party to maintain such actions. Cottam v. Partridge, 4 M. & Gr. 271; 4 Scott, N. R. 819, S.C. In cases where the exception applies, the fact that there has been no item on either side of the account for more than six years is immaterial. Robinson . Alexander, 8 Bligh. N. S. 352, 375, overruling Barber v. Barber, 18 Ves. 286. As to the action of account, see Baxter v. Hosier, 5 Bing. N.C. 288. (e) 9 Geo. 4, c. 14, § 1, as to which see post, §§ 409, 528, 783-791, 801.

(f) See note (d), supra.

(i) 9 & 10 Vict. c. 93, § 3.

(g) See id.

(h) See id.

STATUTES OF LIMITATION.

67

case of continuing damage, within one year after the damage shall have ceased (i).

§ 61. In like manner, the possession of land, for the length of time mentioned in the statutes of limitation, under a claim of absolute title and ownership, constitutes against all persons but the sovereign, a conclusive presumption of a valid grant (j). So also the payment of a modus, or the enjoyment of land tithe-free,

(i) The 5 & 6 Vict., c, 97, § 5 (passed 10th Aug., 1842), after reciting, that "divers acts commonly called public local and personal, or local and personal, acts, and divers other acts of a local and personal nature, contain clauses limiting the time within which actions may be brought for anything done in pursuance of the said acts respectively," enacts, that "the period within which any action may be brought for anything done under the authority or in pursuance of any such act or acts shall be two years, or in case of continuing damage, then within one year after such damage shall have ceased."

(j) This period has been limited differently, at different times; but for the last fifty years, it has been shortened, at succeeding revisions of the law, both in England and the United States. By the 3 & 4 Will. 4, c. 27, § 2, all actions to recover land or rent are barred, after twenty years from the time when the right of action accrued; unless, at such time, the plaintiff or the party through whom he claims shall have been under some disability, specified in the act, in which case he is allowed ten years from the ceasing of the disability; provided that in no case shall an action be brought after forty years from the time when the right first accrued, although the period of ten years shall not have expired. (§§ 16 & 17.) This statutory rule applies to a claim for compensation for equitable waste; (see Duke of Leeds v. Lord Amherst, 2 Phill. 117;) but the sections just referred to do not apply to spiritual or eleemosynary corporations sole, who are empowered by § 29 to bring actions or suits to recover land or rent within two successive incumbrances and six years, or in case these periods do not amount to sixty years, then within sixty years next after the right of action shall first have accrued. §§ 30-33 limit the time within which advowsons can be recovered, while § 28 enacts, that no mortgagor shall bring a suit to redeem a mortgage but within twenty years from the time when the mortgagee took possession, or from the last written acknowledgment of the mortgagor's title. Mortgagees also may bring actions to recover land at any time within twenty years next after the last payment of any part of the principal or interest secured by the mortgage, (7 Will. 4 & 1 Vict., c. 28). See also 6 & 7 Vict., c. 54, and 7 & 8 Vict., c. 27, which acts extend to Ireland such of the provisions of 3 & 4 Will. 4, c. 27, as were not already in force there, and explain and amend that act. This period of twenty years has been adopted in most of the United States. See 4 Kent, Com. 188, n. a. The same period in regard to the title to real property, or, as some construe it, only to the profits of the land, is adopted in the Hindoo law. See Macnaghten's Elem. of Hindoo Law, Vol. I., p. 201.