The question for

evidence, and quashed the order.
the opinion of this Court was, whether, upon the above
evidence, the sessions were justified in presuming that
Smith's first wife was alive at the time of his marriage
with the pauper.

Whateley and F. V. Lee, in support of the order of sessions. This was a question of fact, and the Court will not interfere with the decision of the sessions, unless the evidence was inadmissible, or unless it furnished no ground at all for the decision. [It was here intimated on the other side that the admissibility of the evidence would not be disputed.] In Hopewell v. De Pinna (a) Lord Ellenborough held that a female defendant, who pleaded coverture, was bound to shew that her husband was alive within seven years; but, according to the argument which must be urged on the other side, whenever a jury, upon such evidence given, finds in favour of the plea of coverture, the verdict must be set aside unless positive proof be given that the husband was alive at the commencement of the action. In Wilson v. Hodges (b) the defendants, being sued in debt on recognizance of bail, pleaded the death of the principal before the return of the ca. sa.; and the Court, citing Throgmorton v. Walton (c), held that, as the party was shewn to have been alive, the burden of proof lay on those who asserted the death. In Rex v. Twyning (d) the Court said that they would presume the death of a first husband, rather than that the wife, who had married twice, was guilty of bigamy. But there the sessions had found the fact of the death,

(a) 2 Campb. 113.
(c) 2 Rol. Rep;

461.

(b) 2 East, 312.
(d) 2 B. & Ald. 386.

and

1835.

The KING against The Inhabitants of HARBORNE.

1835.

The KING against The Inhabitants of HARBORNE.

and this Court had only to decide whether they were entitled to act on such a presumption. Here, the Court is required to say that the sessions were not entitled to act on the presumption which satisfied them. If, indeed, Rex v. Twyning (a) must be considered as deciding that a jury or court of quarter sessions is not entitled to find the fact of the life of a party upon any evidence whatever, short of direct proof of his life at or after the given moment where that fact would shew criminality in another person, then it may be a question whether the case ought not to be reconsidered. The two learned judges who decided that case are reported to have held, on the authority of Williams v. The East India Company (b) and Rex v. Hawkins (c), that the presumption in favour of the life of a party, shewn to have been alive rather more than a year back, was outweighed by the presumption that another party had not been guilty of crime. If that be laid down as an invariable rule, even in cases like the present, where the life is shewn to have existed within twenty-five days of the time in question, the decision is not reconcileable with principle, or with the acknowledged understanding of the doctrine of presumption in other cases. A person who is in possession of stolen goods very shortly after they have been stolen, may be, and generally is, presumed to have stolen them, in the absence of evidence to the contrary.

Sir John Campbell and Corbet, contrà. The question is, on whom the burden of proof lay? Did the proof, that the wife was alive within twenty-five days, throw the onus upon the party denying her life? Unless Rer

(a) 2 B. & Ald. 386.
(c) 10 East, 211.

(b) 3 East, 192.

v. Twyning

v. Twyning (a) be bad law, it must be held that the party
asserting the life, and thereby asserting the criminality
of the husband, was still bound to establish the fact of
the life up to the very moment.
The proof given in
support of the removal was the second marriage, and
the settlement of the husband in East Haddon. That
was a primâ facie case; and the appellants were to im-
pugn it. If the letter had been dated after the second
marriage, the sessions might have given it such weight as
they thought fit; but, inasmuch as it was dated earlier,
and therefore only shewed the life to exist before the
marriage, they were precluded from inferring the life's
continuance until the marriage, by the strict rule of legal
presumption, as laid down in Rex v. Twyning (a) and
elsewhere. The Court will not allow the sessions to
find a fact in contradiction to that rule. In Doe dem.
Knight v. Nepean (b), where a verdict had been found
on the supposition that a party might be presumed to
be alive until the end of seven years from the last
receipt of intelligence from him, this Court set the ver-
dict aside, and directed a nonsuit to be entered. The
Court here cannot enter into questions as to the near-
ness or remoteness of the intelligence with reference to
the time of the second marriage. Either the sessions
would be entitled to infer the continuance of the life
from proof of its existence at any time within seven
years, or not to consider its existence proved at all,
unless the proof reached a time as late as the mar-
riage. The presumption of the continuance of life is
met by the presumption of innocence in the husband.
The question stands as it would upon a trial for bigamy.

1835.

The KING against The Inhabit.

ants of HARBORNE.

1835.

The KING against The Inhabit

ants of HARBORNE.

In Gilbert's Law of Evidence (a) it is said, "where law supposes the matter contained in the issue, there the opposite party must be put into the proof of it by a negative; as in the issue ne unques accouple in loyal matrimony, the law will suppose the affirmative without proof, because the law will not easily suppose any person to be criminal, and therefore in this case, the defendant must begin with the negative."

It

Lord DENMAN C. J. The question is, whether the sessions were justified in coming to the conclusion that a party was alive on the 11th of April, who was alive on the 17th of March preceding? If she was alive, there was no marriage on the 11th of April; and if there was no marriage, there was no settlement in East Haddon. seems to me that the evidence was proper, and the conclusion proper. There was no contrary evidence. The only circumstance raising any doubt in my mind, is the doctrine laid down by Bayley J. in Rex v. Twyning (b). But, in that case, the sessions found that the party was dead; and this Court merely decided, that the case raised no presumption upon which the finding of the sessions could be disturbed. The two learned Judges, Bayley J. and Best J., certainly appear to have decided the case upon more general grounds; the principle, however, upon which they seem to have proceeded, was not necessary to that decision. I must take this opportunity of saying, that nothing can be more absurd than the notion, that there is to be any rigid presumption of law on such questions of fact, without reference to accompanying circumstances, such, for instance, as the age or health of the party. There can be no such strict

(a) P. 132. 6th ed.

(b) 2 B. & Ald 388.

pre

presumption of law. In Doe dem. Knight v. Nepean (a)
the question arose much as in Rex v. Twyning (b). The
claimant was not barred, if the party was presumed
not dead till the expiration of the seven years from
the last intelligence. The learned Judge who tried
the cause held that there was a legal presumption of
life until that time, and directed a verdict for the
plaintiff, because, if there was a legal presumption,
there was nothing to be submitted to the jury. But
this Court held, that no legal presumption existed, and
set the verdict aside. That is quite consistent with the
view which we take in the present case; and Rex v.
Tuyning (b) may be explained in the same way.
I am
aware that, in this latter case, Bayley J. founds his
decision on the ground of contrary presumptions; but I
think that the only questions in such cases are, what
evidence is admissible, and what inference may fairly be
drawn from it. It may be said, suppose a party were
shewn to be alive within a few hours of the second
marriage, is there no presumption then? The presump-
tion of innocence cannot shut out such a presumption
as that supposed. I think no one, under such circum-
stances, could presume that the party was not alive at
the actual time of the second marriage.

LITTLEDALE J. I am of the same opinion. The sessions, or a jury, on such evidence as this, might infer the existence of the life at the time of the second marriage. All these questions depend upon the facts. There can be no direct evidence as to the fact, unless the party be shewn to be alive after the marriage.

(a) 5 B. & 4d. 86. VOL. II.

N n

(b) 2 B. & Ald. 386.

The

1835.

The KING against The Inhabitants of HARBORNE.