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private appointments such as tithe-collectors, or assignees of a bankrupt, or a town-clerk; for in these cases the appointments must be proved. But a private document is presumed to have been written at the time when it bears date.2 Where indentures of a pauper's apprenticeship would have been invalid, if not executed in conformity with the rules of the Poor Law Commissioners, and there was no evidence to show that theirr egulations had been observed; it was held, that, in the absence of contradictory evidence, it must be presumed that the regulation had been observed.3 So generally the orders of justices will be presumed to have been made according to all statutory formalities. Thus, when to prove a parish apprenticeship secondary evidence of a lost indenture was admitted, it was presumed that the indenture had been executed according to all the requisites of 56 Geo. 3, c. 139, because there was evidence that an arrangement for the apprenticeship had been made before magistrates and that an apprenticeship had subsequently existed.5 But it seems that it would be otherwise where there is no such evidence. This rule in similar cases has been extended to the principle that that may be presumed which accounts reasonably for an existing state of things. Therefore, the fact that a person served an apprenticeship raises a presumption that he was duly bound an apprentice sufficiently, where the indenture had been sought in vain, to create a settlement by apprenticeship. So the fact of a marriage having taken place before a registrar in a chapel raises the presumption that the chapel was properly registered and the marriage legal.8

1 R. v. Mayor of Stamford, 6 Q. B. 433. 2 Malpas v. Clements, 19 L. J. 435, Q. B.

3 R. v. St. Mary Magdalen, 23 L. J. 1, M. C.

Williams v. Eyton, 27 L.J. 177, Ex.; Sc. Cam. 28 L. J. 146, Ex. 5 R. v. Broadhempston, 28 L. J. 18, M. C.

6 R. v. E. Stonehouse, 16 L. J. 49, M. C.

1 R. v. Fordingbridge, 27 L. J. 290, M. C.

8 R. v. Mainwaring, 26 L. J. 11, M. C.: 7 Cox Crim. Cas. 192.


It will be seen from these cases that the rule has been extended from the acts of public servants to the purport of public and even some private instruments. Thus public records are evidence of their own authenticity, and may now generally be proved by exemplifications or examined copies. It would also appear that it is from a restricted application of the same rule that deeds and wills are presumed to have been duly executed where thirty years have elapsed from the time of their execution.2 The Statutes of Limitation, according to which simple contract debts cannot be recovered after six years; specialty debts after twenty years; and land after an undisturbed possession of twenty years;3 are all founded on the same legal presumption, that an omission to prosecute a legal claim for a certain number of years, amounts to an admission that no adverse claim exists, and must be treated as such by the community. Accordingly it is presumed, under such circumstances, that the debts have been paid and the land duly conveyed and no evidence of a different state of facts will be received.

Omnia præsumuntur contra spoliatorem. If a man, by his own wrongful act, withhold the evidence by which the facts of the case would be manifested, every presumption to his disadvantage will be adopted.


In Armory v. Delamirie, the plaintiff, a boy, had found a jewel, which he gave for inspection to the defendant, a jeweller; and in trover for it, it was held, that unless the defendant produced it, the jury must presume it to be of the first water. But this presumption only arises where there is a suspicion of fraud.

1 14 & 15 Vict. c. 99, s. 14.

2 Doe d. Oldham v. Walley, 8 B. & C. 22. 3 Nepean v. Doe, 2 Sm. L. C. 396, notes.

4 1 Sm. L. C. 153, notes to Armory v. Delamirie.

And where the deficiency of evidence arises from negligence, the party who is accountable for it cannot be benefited by it. Thus, where a liquor merchant sued for goods sold and delivered, and the only evidence was that some hampers of full bottles had been delivered to the defendant, but there was no evidence of the contents of the bottles; Lord Ellenborough told the jury to presume that the bottles were filled with the cheapest liquor in which the plaintiff dealt.1 But if a devisee under a first will destroy a subsequent will, it will be presumed as against him that the first will has been revoked.2 The refusal, however, to produce documents on notice, is not ground for any inference as to their contents.3 In the case of wills, if a will be sought in a likely place after the testator's death, and be not found, it is presumed either to have been revoked, or never to have existed.5 But these presumptions are rebuttable.6

Where the issue is upon the life or death of a person who has been once shown to be living, the proof of the fact lies on the party who asserts the death, for the presumption is that the person continues alive until the contrary be shown.7 But where it is proved that the person has not been heard of for seven years, a presumption arises that he is dead. This presumption relates only to the fact of death; and the time of death, whenever it is material, must be a subject of distinct proof; for the court will not presume the continuance of life up to the end, or to any precise point of the seven years.8

Where several persons have perished in the same calamity, the presumption is said to be in favour of

1 Clunnes v. Pezzey, 1 Camp. 8.

2 Harwood v. Goodright, Cowp. 86, per Lord Mansfield.

3 Cooper v. Gibson, 3 Camp. 363.

Brown v. Brown, 27 L. J. 173, Q. B.; 31 L. T. Rep. 297. 5 R. v. Johnson, 27 L. J. 52, M. C.

6 Patten v. Poulton, 27 L. J. 41, P. & M.; 31 L. T. Rep. 40. Wilson v. Hodge, 2 East, 313.

Nepean v. Doe, 2 M. & W. 910; S. C. and 2 Sm. L. C. 308.


the survival of the stronger party. But this doctrine has caused much controversy; and in a late case where it appeared that a husband, a wife, and their two children were washed off from the deck of a ship by the same wave and drowned; the Master of the Rolls held that in the absence of further evidence it must be presumed that all died at the same moment.2

By the law of marine insurance, if a vessel has sailed, and no tidings of her have been received within a reasonable time, she shall be presumed to have foundered at sea.3 And if a ship, shortly after sailing, shall, without visible or adequate cause, become leaky or otherwise incapable of performing the voyage insured, she shall be presumed to have been unseaworthy at the commencement of the risk. But this last rule does not appear to be quite established.5

Where goods have been lost or damaged while in the custody of a bailee or his servants, it is presumed that the loss or damage arises from his negligence. This presumption appears to arise as much in the case of a gratuitous bailee as in that of a bailee for valuable consideration; but the liability will be limited by the rules laid down in Coggs v. Bernard."

Partners are presumed to have authority to bind their co-partners in all matters relating to the partnership, but not in matters unconnected with it.8

A large class of legal presumptions is contained in the technical and abstruse doctrine of estoppel.

"The law of estoppel is not so unjust or absurd as it has been too much the custom to represent. The

11 Phill. 479; Sillish v. Booth, 1 Y. & Col. 117.

2 Underwood v. Wing, 23 L. T. 339. Aff.: L. C. 24 L. J. 293, Ch. 3 Tayl. 131. 4 Tayl. 132.

5 1 Phill. 471, cf. Thompson v. Hopper, 27 L. J. 441, Q. B.; 32 L. T. Rep. 38.

6 Carpue v. L. and B. R., 5 Q. B. 747; Latch v. Rumner Railway, 27 L. J. 155, Ex.

72 Lord Raym. 918; 1 Sm. L. C. 82, and notes.

8 Sandilands v. Marsh, 2 B. & Ald. 673; Bales v. Westwood, 2 Camp. 12.

principle is, that where a man has entered into a solemn engagement by deed under his hand and seal, he shall not be permitted to deny any matter which he has so asserted."1 The presumption is, that that is true which the deliberate act or statement of the party estopped has affirmed. A primâ facie presumption of the same kind arises also from parol admissions,2 and extends to all who are identified in interest with the estopped party.3

It is held that parties to deeds are concluded by recitals as to specific facts. In Bowman v. Taylor,1 Lord Denman said : 66 As to the doctrine laid down in Co. Litt. 352 b., that a recital doth not conclude because it is no direct affirmation, the authority of Lord Coke is a very great one; but still, if a party has, by his deed, recited a specific fact, though introduced by 'whereas,' it seems to me impossible to say that he shall not be bound by his own assertion so made under seal." But evidence may be given to explain a record.5

A tenant cannot dispute his landlord's title.


"The security of landlords would be infinitely endangered if such a proceeding were allowed. But although a tenant cannot be permitted to prove that his landlord never had any title, he may show that his title has expired.7

It is presumed that if a tenant show a receipt for rent, all previous rent has been paid by him to the landlord.8 A mortgagor in possession is presumed to have authority to distrain as the bailiff of the mortgagee.9






Per Taunton, J., Bowman v. Taylor, 2 Ad. & El. 291.
Bringloe v. Goodson, 5 Bing. N. C. 739.

2 Sm. L. C., notes to Duchess of Kingston's case.


Preston v. Peeke, 27 L. J. 424, Q. B.

6 Lord Ellenborough: Balls v. Westwood, 2 Camp. 12.

England v. Slade, 4 T. R. 682.

9 Trent v. Hunt, 22 L. J. 318, Ex.

8 1 Phill. 492.

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