§ 229. Presumptions from possession. As respects personal property, a presumption of ownership arises from evidence that a person has exercised acts of possession over it.1 This presumption is slight, and is rebutted by facts tending to show, for example, that the goods were stolen. A contrary presumption is then created which, if not rebutted by the party in whose possession the stolen goods have been found, may result in fastening the theft upon him.2 Upon the general question whether the possession of the fruits of crime, as of a forged writing, of counterfeit money, or goods taken from a house where a burglary had been committed, causes any presumption of guilt to attach to their possessor, the courts are divided. It was at one time held, nor is this rule without the support of modern cases, that a presumption of law was created that a person in whose possession the results of crime recently committed were found was prima facie concerned in the crime committed. The most recent decisions, however, repudiate this doctrine that any presumption of law arises; and doubtless the true modern rule is that the presumption, if any, is one of fact. In other words, the fact of possession is now considered as merely a circumstance to be submitted to and weighed by the jury in determining the guilt of the accused. While the effect of such evidence is for the jury, whether it is admissible depends largely upon the shortness of the time which has elapsed 1 Rankin v. Bell, 19 S. W. Rep. 874; National Bank v. Richardson, 2 N. Y. S. 804; Powers v. Braley, 41 Mo. App. 556; Gregg v. Mallett, 15 S. E. Rep. 936; 111 N. C. 74; Magee v. Scott, 9 Cush. (Mass.) 150; Millay v. Butts, 35 Me. 139; Fish v. Scut, 21 Barb. 33; Stoddard v. Buxton, 41 Iowa, 582. The possession of a house raises no presumption of ownership of personalty contained in but not annexed to it. Caraher v. Insurance Co., 63 Hun, 82. 2 State v. Moore, 101 Mo. 316; State v. Van Winkle, 80 Iowa, 15; Reed v. State (Ark., 1891), 16 S. W. Rep. 819. 3 State v. Kelly, 73 Mo. 608; People v. Weldon, 111 N. Y. 569; Rex v. Fuller, Russ. & Ry. 308; Stover v. People, 56 N. Y. 316; State v. Owsley, 111 Mo. 450; McLain v. State (Neb., 1885), 7 Crim. L. Mag. 199. 4 State v. Rights, 82 N. C. 675; State v. Raymond, 46 Conn. 345; Ayres v. State, 21 Tex. App. 399; Ryan v. State, 83 Wis. 486; Sahlinger v. People, 102 Ill. 241; State v. Hodge, 50 N. H. 510; State v. Bishop, 51 Vt. 287; People v. Mitchell, 55 Cal. 236; Stuart v. People, 42 Mich. 255; Galvin v. State, 93 Ind. 550. since the commission of the crime and the actual knowledge of the prisoner that the goods were in his possession.1 While the wilful mutilation or destruction of written evidence raises a prima facie presumption of law that it was not done innocently and that its production intact would have been injurious to the interest of the person who is guilty of destroying or mutilating it, the mere invention of verbal evidence or false testimony on the witness stand creates no presumption of law, but is a circumstance to be considered by the jury bearing on the credit they will give the witness. If, however, the perjury is deliberate and upon material facts, the jury may infer, under the maxim falsus in uno falsus in omnibus, that the testimony of the witness is wholly unworthy of belief, though not compelled to do so by any rule of law. Under peculiar and special circumstances the suppression of evidence or a refusal to produce it may raise a presumption that its tenor and effect would be unfavorable to the persons in whose possession it is known to be. So, if a wrong or injury which is inflicted not only substantially damages a party, but at the same time deprives him of the means of showing the nature and extent of his damage, the law will endeavor to supply the loss and the resulting insufficiency of proof by raising all reasonable presumptions against the evil doer and in favor of the injured person. 1 Gablick v. People, 40 Mich. 292; Com. v. Talbot, 2 Allen (Mass.), 161; Payne v. State, 21 Tex. App. 184; State v. Scott (Mo., 1892), 19 S. W. Rep. 89; State v. Owsley, 111 Mo. 450; Smathers v. State, 46 Ind. 447; Sahlinger v. People, 102 Ill. 241; State v. Jennett, 88 N. C. 605. 2 See ante, § 129; Blade v. Noland, 12 Wend. 173; 1 Kent's Com. 157; Mersman v. Werges, 112 U. S. 141. See § 129; Tobin v. Shaw, 45 Me. 331. 31 Greenl. on Ev., § 37; Wills on Cir. Ev. 113. See, also, post, § 342a; State v. Knapp, 45 N. H. 148. * See § 342a. 5 Packer v. Vandevender, 13 Pa. But generally the fact that Co. Ct. Rep. 31; Cross v. Bell, 34 6 Little Pittsburg Con. Mining Co. v. Little Chief Cons. Mining Co., 11 Colo. 223; 7 Am. St. Rep. 226; Hart v. Ten Eyck, 2 Johns. Ch. 62, 108; Clark v. Miller, 4 Wend. 628. If by statute a witness is precluded from testifying, e. g., a wife in an action brought by the husband for her seduction, her failure to testify of course creates no presumption. a party produces no witnesses, or, having produced them, fails to examine them,' or fails to produce any particular witness,2 will not justify the jury in drawing any inference that the evidence of his opponent is true if, upon the facts of the case, they are not satisfied with its credibility. So, generally, the non-production of books or papers does not necessarily create the presumption that they contain entries which would prove injurious to the party in whose possession they are and who has been notified to produce them. But where certain documents of a series constituting muniments of title were suppressed by their admitted holder, it was held that an inference of fact might be drawn in the absence of clear evidence of their contents that, had they been produced, they would have proved unfavorable to him. If a note, bond or similar security be found in the hands of the maker or obligor after maturity, it will be presumed to have been paid, and this Adams v. Maine, 3 Ind. App. 232; 29 N. E. Rep. 792. See ante, § 166. But where one is charged with fraud, his failure to testify (Conn. Mut. L. Ins. Co. v. Smith (Mo., 1893), 22 S. W. Rep. 623), or to produce documents in his possession, creates a presumption against him. Clifton v. United States, 4 How. (U. S.) 242. A refusal to produce property claimed by another raises a presumption that its value is as stated by the claimant. Sutton v. Davenport, 27 L. J. C. P. 54. 4 Thompson v. Thompson, 77 Ga. 692; Cartier v. Lumber Co., 35 Ill. App. 449; Harrison v. Kiser, 79 Ga. 588; 4 S. E. Rep. 320; Jennings v. Railroad Co., 97 N. Y. 438; Reavis v. Overinshaw, 105 N. C. 369. 5 Jones v. Knauss, 31 N. J. Eq. 609; Thompson v. Thompson, 9 Ind. 323. 6 Porter v. Nelson, 121 Pa. St. 628; Lindsay v. McCormick, 5 S. E. Rep. 834; Turner v. Turner, 80 Cal. 141; Hollenberg v. Lane, 47 Ark. 394; Weidner v. Schweigert, 9 S. & R. 1 Haynes v. McRae (Ala., 1893), 11 385. A note found among the papers S. Rep. 270. 2 Scovill v. Baldwin, 27 Conn. 316; Cramer v. Burlington, 49 Iowa, 213; Gardner v. Benedict, 27 N. Y. S. 3. 3 Enos v. St. Paul, etc. Co. (S. D., 1893), 57 N. W. Rep. 919; Meagley v. Hoyt, 125 N. Y. 771; Sauer v. Union Oil Co., 9 S. Rep. 566; Cross v. Lake, etc. Co., 69 Mich. 363; 37 N. W. Rep. 361; Mooney v. Holcomb, 15 Oreg. 639; 16 Pac. Rep. 716; Diel v. Railway Co., 37 Mo. App. 454. of the maker after his death will be presumed to have been in his possession during his life-time. Potts v. Coleman, 86 Ala. 94. Though the circumstance of the debtor's ability to pay does not alone create a presumption of payment (Morrison v. Collins, 127 Pa. St. 28), it may be sufficient in connection with the fact that the creditor had abundant opportunity to collect his debt. Bank v. Howes, 33 Mo. App. 214. presumption, though usually rebuttable,' has been held conclusive where the evidence was otherwise irreconcilable.2 7 6 A prima facie presumption of payment or delivery is also created by the possession by the drawee of an order for money or for the delivery of personal property. That a deed has been delivered will be presumed from the fact that it is found in the possession of the grantee or of one claiming under him, properly executed and acknowledged, although this presumption may be rebutted by the fact that it was not recorded until after the death of the grantor. So a deed will be presumed to have been executed and delivered on its date, though it was acknowledged or recorded subsequently. 8 Where several documents are of even date they will be presumed to have been executed in the order that will effectuate the object intended. But it has been held that the delivery will be presumed to have been made on the day the deed was acknowledged, and this is necessarily the rule where the deed itself is undated." This presumption of delivery on the date of execution may be rebutted by showing a subsequent actual delivery. No presumption is created by delivery to a stranger, and in such a case the intention to deliver must be 12 3 Lane v. Farmer, 13 Ark. 63; Kincaid v. Kincaid, 8 Humph. (Tenn.) 17; Ramson v. Adams, 17 Johns. (N. Y.) 130. 4 Gifford v. Corrigan (N. Y.), 11 N. E. Rep. 498; Meech v. Fowler, 14 Ark. 29; Lyerly v. Wheeler, 12 Ired. 290; Darst v. Bates, 51 Ill. 439; Billings v. Stark, 15 Fla. 297; Tiedeman on R. P., § 812; Ward v. Lewis, 4 Pick. 518; Dais' Appeal, 128 Pa. St. 572; Scobey v. Walker (Ind., 1888), 15 N. W. Rep. 674; Criffen v. Griffen, 125 Ill. 430; 17 N. E. Rep. 782; Windom v. Schappel, 39 Minn. 35; 38 N. W. Rep. 757; Tuttle v. Rainey, 98 N. C. 513; Ward v. Dougherty, 75 Cal. 240; 17 Pac. Rep. 193; Crowder v. Searcy, 103 Mo. 97; Vreeland v. Vreeland, 48 N. J. Eq. 56. 5 Scott v. Scott, 95 Mo. 300. 7 People v. Snyder, 41 N. Y. 397. 8 Robinson v. Wheeler, 25 N. Y. 252. 9 Williams v. Woods, 16 Md. 220. 10 Fontaine v. Sav. Inst., 57 Mo. 561; Blanchard v. Tyler, 12 Mich. 339; Loomis v. Pingree, 43 Me. 299, 308; Henry v. Bradshaw, 20 Iowa, 355. 11 Bank v. Mersereau, 3 Barb. Ch. 528. 12 Wyckoff v. Remsen, 11 Paige, 564; Abb. Tr. Ev. 695. express.1 Delivery and acceptance are concurrent acts, and a prima facie presumption of acceptance by the grantee will usually be created from his knowledge of the delivery and from the benefit derived by him thereby. And in the case of a grantee under disabilities, this presumption of acceptance will be conclusive even if the grantee is ignorant of the conveyance and delivery. The ownership of goods named in a bill of lading is prima facie presumed to be in the consignee,' while his possession of that document creates a presumption that the merchandise was properly delivered to the carrier and that he assented to its terms.5 § 230. Presumptions from the usual course of trade.— Every one is presumed to take proper care of his own affairs and not to act against his own interests. From this principle, and keeping in view the care, promptness and diligence with which men pursue the objects of their ambition, various prima facie presumptions have been recognized growing out of the course of trade. So a check, note or bond properly signed will, in the hands of a bona fide holder, be presumed to have been delivered completely executed to the payee, even though in the case of a bank-note the signature has been obliterated.' So it is a general rule that a party who produces a note will be prima facie presumed to be its bona fide holder and to have 1 Maynard v. Maynard, 10 Mass. 456; Folk v. Vara, 9 Rich. Eq. 303; Cecil v. Beaver, 28 Iowa, 240; Lutes v. Reed, 138 Pa. St. 191; Tiedeman on R. P., § 814. 2 Gifford v. Corrigan, 117 N. Y. 257; Bowman v. Griffith, 35 Neb. 361; Robinson v. Gould, 26 Iowa, 93; Baker v. Haskell, 47 N. H. 479. 3 Tiedeman on R. P., § 814; Spencer v. Carr, 45 N. Y. 410; Cecil v. Beaver, 28 Iowa, 241; Peavey v. Tilton, 18 N. H. 152; Gregory v. Walker, 38 Ala. 26; Bank v. Bellis, 10 Cush. 378; Rivard v. Walker, 39 Ill. 413; Diefendorf v. Diefendorf, 8 N. Y. S. 617. 4 Lawrence v. Minturn, 17 How. (U. S.) 100. 5 Boorman v. Express Co., 21 Wis. 152. 6 Hensel v. Chicago, etc. Co., 37 Minn. 87. So, too, consideration in such a case will be presumed and need neither be expressed in the instrument, pleaded or given in evidence. Carnright v. Gray, 11 N. Y. S. 278; 27 N. E. Rep. 835, McClel land v. McClelland, 42 Mo. App. 32; Benedict v. Driggs, 34 Hun, 94; Conger v. Armstrong, 3 John. Cas. 5; Norton v. Norton, 17 N. Y. St. Rep. 487. 7 Murdock v. Union Bank, 2 Rob. 112; Smith v. Smith, 15 N. H. 55. |