search the merits of each case that comes before them(z) and decide upon the merits, subject only to general principles, which they must learn(@). § 95. So again in many cases which will be hereafter considered, a party is estopped from denying his own admissions and representations: as for instance a man who admits that he is a tenant of A cannot dispute his landlord's title in an action by the latter for rent, or to eject him. So if a man induces a tradesman to supply a woman with goods by a representation that she is his wife, he shall not afterwards be permitted to show that she was not, in a suit brought against him by the tradesman for the price of the goods. This subject will be considered at large when we come to the doctrine of estoppel. Here it will suffice to quote the words of Lord Denman in Pickard v. Sears. (b) "The rule of law is clear, that, where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time." (2) "It is the duty of this Court" says Lord Cottenham in Walworth v. Holt, 4 M. and C. p. 635" to adapt practice and procedure to the existing state of society, and not by too strict an adherence to forms and rules established under different circumstances, to decline to administer justice and to enforce rights for which there is no other remedy. This has always been the principle of this Court, though not at all times sufficiently attended to." (a) It must not be supposed from the above that Courts of Equity in England will set aside a contract merely from the inadequacy of the consideration. It must be such an inadequacy as amounts to a fraudulent and unconscientious advantage. The following passage from Storey's Commentaries on Equity, vol. 1. p. 204, may be usefully quoted. "Mere inadequacy of price, or any other inequality in the bargain is not, however, to be understood as constituting, per se, a ground to avoid a bargain in Equity. For Courts of Equity, as well as Courts of Law, act upon the ground, that every person, who is not, from his peculiar condition or circumstances, under disability, is entitled to dispose of his property in such manner and upon such terms as he chooses; and whether his bargains are wise and discreet, or otherwise, or profitable, or unprofitable, are considerations, not for Courts of Justice, but for the party himself to deliberate upon." Inadequacy of consideration is not, then, of itself, a distinct principle of relief in Equity. The Common Law knows no such principle. The consideration, be it more or less, supports the contract. Common sense knows no such principle. The value of a thing is what it will produce; and it admits of no precise standard. It must be in its nature fluctuating, and will depend upon ten thousand different circumstances. One man, in the disposal of his property, may sell it for less than another would. He may sell it under a pressure of circumstances, which may induce him to part with it at a particular time. If Courts of Equity were to unravel all these transactions, they would throw every thing into confusion, and set afloat the contracts of mankind. Such a consequence would of itself be sufficient to show the inconvenience and impracticability, if not the injustice, of adopting the doctrine, that mere inadequacy of consideration should form a distinct ground for relief." "Still, however, there may be such an unconscionableness or inadequacy in a bargain, as to demonstrate some gross imposition or some undue influence; and in such cases Courts of Equity ought to interfere, upon the satisfactory ground of fraud. But then such unconscionabieness or such inadequacy should be made out, as would (to use an expressive phrase) shock the conscience, and amount in itself to conclusive and decisive evidence of fraud. And where there are other ingredients in the case of a suspicious nature, or peculiar relations between the parties, gross inadequacy of price must necessarily furnish the most vehement presumption of fraud." (6) 6 Ad. and El. p. 474. § 96. As to written instruments, the subject is thus exhausted. We come now to the practice of the Law which annexes an artificial effect to facts. § 97. This it does by raising upon facts certain artificial Presumptions; by drawing from them certain arbitrary inferences, as contradistinguished from those which a judge or jury would naturally draw, were the Law silent on the point. The subject of presumptions will be fully considered hereafter; at present it will suffice to study the language of Bonnier, as translated by Best.(c) "The determining to what extent a certain known element renders probable the existence of such or such an unknown cause, depending, as it necessarily does, on the light of reason, must in general be left solely to the discrimination of the judge. But in the most important cases the law, desirous of insuring the stability of certain positions, and of cutting short certain controversies, has established PRESUMPTIONS, to which the judge is obliged to conform." And in another place," It is not always possible for a man to arrive at a perfect knowledge of the truth in each particular case, and yet social necessities do not always allow him to suspend his judgment and refrain. The stability of the status of person and property, in a word, the want of peace and security for a multitude of valuable interests, compel the legislator to hold as true a great number of points which are not demonstrated, but whose existence is established by an induction more or less cogent. Political order, like social order, rests only on legal presumptions. The capacity of exercising certain rights, or fulfilling certain functions, can be recognized only through the medium of certain conditions determined. á priori, a special verification for each individual being evidently impracticable. The more social relations become complicated, the more it becomes necessary to multiply these presumptions.*** The motives which have induced the legislator to establish such or such a presumption more frequently belong to law than to fact. What he chiefly considers is, not if the known fact combines all the characteristics requisite to render the unknown fact probable, but only if social interest requires that from the proof of one the existence of the other ought to be inferred." § 98. Now briefly to glance at the division of these legal presumptions, and to give some instances by way of illustration. This again is ready to our hands in the following section of Mr. Best's work. (d) "These legal presumptions are of two kinds. In most of them the law as (c) See Principles of Evidence, § 42. STARKIE'S OBSERVATIONS. 49 sumes the existence of something until it is disproved by evidence-called by the civilians præsumptiones juris, or præsumptiones juris tantùm; and likewise, by English lawyers, inconclusive or rebuttable presumptions. In others, although these are much fewer in number, the presumption is absolute and conclusive, so that no counter-evidence will be received to displace it. These are called præsumptiones juris et de jure-a species of presumption correctly defined, Dispositio legis aliquid præsumentis et super præsumpto, tanquam sibi comperto, statuentis. To this class belong the promise to pay which the law implies from the purchase of goods; the intent to kill or to do grievous bodily harm implied from the administration of poison, using deadly weapons, &c. Some may be considered as belonging to universal jurisprudence; the principal of which are the presumption of right derived from the continued and peaceable possession of property, and the presumption upholding the decisions of courts of competent jurisdiction. We have already alluded to the maxim Interest reipublicæ ut sit finis litium ; to which must be added, Vigilantibus et non dormientibus jura subveniunt and Ex diuturnitate temporis omnia præsumuntur solemniter esse acta. Possession is at all times primâ facie evidence of property; but if undisturbed possession for a very long time had not a conclusive effect, the most valuable rights would not only be made the continual subject of dispute, but be liable to be divested or overthrown when the original evidences of the title to them become lost or decayed by time: accordingly, among the various ways in which property may be acquired, we find both writers on natural law and the positive codes of most nations recognizing that of prescription,' or uninterrupted user or possession for a period longer or shorter." And see the observations of Starkie. (e) "As artificial or legal presumptions are founded partly upon principles of policy and utility, independently of the real existence of the fact inferred, and consequently, as such presumptions must occasionally, at least, be made contrary to the real truth, it follows, that these presumptions cannot, consistently with just principles, be established, unless either the real fact be immaterial, as where the presumption is made merely for the purpose of annexing a legal consequence to the fact on which the presumption is founded; or where the fact to be presumed being material, but its investigation difficult and remote, a general rule of presumption can be established of practical convenience, and consistent with justice, although it may occasionally operate contrary to the truth. In the first place, presumptions are frequently made for the mere purpose of annexing a legal incident to a particular predicament of Act. If the fact B. to which a particular legal con (e) Starkie, p. 743, note (ƒ). G sequence is annexed, be absolutely or conditionally presumed from the existence of the fact A, it is obvious that the effect is to annex to the fact A. the legal consequence which belongs to B. The making of such presumptions, and thus annexing legal consequences, is an indirect mode of legislation; and in estimating the legal value of such a presumption, it is plain that the intermediate or presumed fact may be left out of the account; the question is, whether a legal consequence be well connected with a particular predicament in fact; in other words whether a rule of law be wisely constituted. Thus, if from the adverse possession of an incorporeal interest in the lands of another, unanswered, a grant is to be presumed, the effect is to annex ownership as an incident to such adverse possession unanswered; for the supposed grant is mere fiction, or legal machinery, and the only question is, whether the legal consequences really incident to a valid grant are well annexed to such a state of facts.-Again, in trover, a conversion of the plaintiff's property is to be inferred by a jury, from the fact of a demand by the owner, and refusal on the part of the defendant who is in possession of it, such refusal being unexplained. Here, the predicament on which the presumption is built renders the fact presumed in reality immaterial where the defendant wilfully withholds the plaintiff's property; it is of no importance to the real justice of the case, as between the parties, to what use the defendant may have applied the property, whether he has consumed the goods, or allowed them to perish in the course of nature. The effect in such cases is merely to annex to one fact a legal incident annexed by law to another fact, to which the former is in all respects equivalent. Such presumptions are also well founded in principle where the investigation of a fact is difficult and precarious, and where a general rule of practical utility can be established, without occasioning positive injustice, in individual instances. Within this principle, all statutes of limitation, and the presumptions made in analogy to them, are founded. The difficulty of proving a debt constantly increases with lapse of time, and may at last become impossible; whilst, on the other hand, the probability that he who makes no claim of payment or possession has a right to make it, continually diminishes" Convenience, therefore, requires that at some period or other the presumption should be made, either absolutely or otherwise, against the antiquated claim. And as such a rule or presumption must be general in its operation, a precise and definite period must of course be appointed for its operation. The great advantages of this in point of policy and convenience. are of the most obvious nature. The operation of such a rule, whether it be absolute, or be but a prima facie presumption, being purely artificial in its nature, may be, it is true, contrary to the fact: but of this, a party who knew the rule, and who suffers therefore merely from his own laches, has po just ground for complaint. On this ground, by the stat. 1, Jac I. c. 11, s. 2, 19.—Car. II. c. 6, a person who has been abroad for the space of seven years, and has not been heard of within that time, is, at the expiration of it, presumed to be dead; a rule of convenience, on account of the difficulty of proving the death of a person under such circumstances, and attended with no positive injustice in any individual case, the presumption operating only in the absence of proof to the contrary. 66 'It has been said, that the presumption of the law is better than that of man (Esprit des Loix, 1. 29, c. 16). A position much too large, if it be not limited to general rules of the nature above alluded to. For artificial presumptions, although beneficial, as general and practical rules, are usually very uncertain and precarious instruments for the investigation of truth in particular instances; they are, therefore, unfit to be employed where any application of the law, contrary to the real fact, would be attended with positive injustice, as in criminal cases." The whole subject of Presumptions will be considered at large in the third part of this work; here I would only caution the beginner against the abuse of too hastily raising a presumption, or ås it is called in common parlance, of jumping to a conclusion. Not only is rashness in this respect to be avoided, but care must be taken that our presump tion when raised is legitimate, and follows necessarily from the premises before us. Otherwise we shall be guilty of twisting and perverting circumstances to our own view, a fault only too likely to happen whenever the mind is pre-occupied or biassed by some preconceived hypothesis of innocence or guilt. § 99. Thus we have examined the principles of evidence; and we find that generally speaking there is no difference between the course of investigation allowable in judicial and ordinary matters. That the Law only interferes to vary the ordinary course from causes originating in vexation, expense, or delay: that it operates either by way of exclusion or annexation of particular effects: that its principal exclusive tests are oath and cross-examination; but that, on the ground of public policy, it also excludes testimony in certain other cases, such for instance as secrets of State, confidential communications, &c. ; that it annexes effects to instruments and to facts; to the former; according as they are of a public or private character; to the latter, by way of drawing from them certain inferences or presumptions. § 100. Our next great division is that of the kinds of Evidence. We have thus completed the first part of our subject; namely the Principles. |