IV. evidence. is by no means necessarily true, but usually rests on PART grounds of legal policy and convenience. But to a *Jury, who are in possession of all the circumstances of the case, and are, at the peril of their oaths, to decide according to Presumptive the real truth as collected from all the evidence, a far great- 1231 er latitude may reasonably be given (o): they, from the very extensive nature of the trust committed to them, are limited in the discharge of that duty by no boundaries, except those of truth and actual fact, which they are always bound to find, according to their conscientious conviction and persuasion, derived from the evidence, without regarding consequences, and unfettered by extraneous considerations of policy and convenience. If this be so, it follows, that however impolitic and inconvenient it may be to extend the limits of artificial presumptions, such objections have no weight, or rather, are wholly inapplicable to conclusions drawn by a Jury from legal evidence, although circumstantial in its nature, tending to the proof of the facts so inferred. It can never be contended, that they are in no instance to be allowed to infer the execution of a deed from circumstantial evidence; such evidence frequently acts with an almost irresistible degree of force, such as no rational mind can withstand. But if this be once admitted the principle must extend to all cases where there is legal evidence tending to the proof. No intermediate limits can, consistently with principle, be interposed; it is the peculiar province of the Jury to estimate the weight and effect of evidence. * Reasons of policy and convenience are the very foundation upon which all artificial presumptions are built, and the utility and propriety of such presumptions, and the extent to which they ought to prevail, whether as conclusive on the subject-matter, or merely till proof be adduced to the contrary, are mere matters of legal consideration. * 1232 But from these, the conclusions of the fact, drawn by a Jury from circumstantial evidence, differ most widely and essentially in this as well as other respects, inasmuch as jurors are bound by their oath to decide according to the real truth, without regard to consequences; and it is clear, upon principle, that their functions can never be properly limited by any considerations of mere policy and convenience (p), whatever may be the legal effect of the facts when found. (0) A Jury, it has been seen, may draw a conclusion from circumstantial evidence, where even a court of equity cannot. Reeves v. Brymer, 6 Ves. 516; supra, 1227, note (l). (p) These observations have been introduced, in order that ob PART IV. jections to the doctrine of mere artificial or legal presumptions may not be applied to conclusions made by a Jury from circumstantial evidence. In the case of Doe d. Putland v. Hilder, 2 B. & A. 782, the title of the lessor of the plaintiff was founded on a judgment, recovered in the year 1808, against Richard Newman, for 8,000l., and a writ of elegit and inquisition thereon in 1818. On the part of the defendant it appeared, that in 1762 the premises had been mortgaged for a term of one thousand years by Naylor, and that in 1799 the mortgage was discharged, and the term assigned to William Denman, in trust for John Newman, a purchaser of the premises to attend the inheritance. In 1814, Richard Newman, to whom the premises had descended from the purchaser, executed a marriage settlement, and in 1816 conveyed the premises to Sarah Newman his mother, as a security for 1162., which was due from him to her. But no assignment of the term or delivery of the deeds took place on either occasion. Mrs. Newman died in 1817, and in 1819 an assignment was made by the administrator of the trustee of the term in 1799, to a trustee, in trust for the devisees of Mrs. Newman. The Jury, under the direction of the learned Judge who tried the cause, presumed a surrender of the term, and the Court of K. B. afterwards refused to disturb the verdict, on the ground, as it appears, that the circumstantial evidence warranted such a finding in fact. Upon this case, Mr. Sugden (in his letter to Charles Butler, Esq. on the doctrine of presuming a surrender of terms, assigned to attend the inheritance, 1819,) has very rightly urged, that in such a case the possession of the cestuy que trust being consistent with the existence of the term in the trustee, no presumption, as from an adverse and continued possession, ever arises. This argument seems fully to prove, that a surrender, in such a case, is not to be pre* 1233 sumed from mere lapse of time. But it is to be * observed, that the Court, in refusing a new trial, did not refuse it upon that ground, but relied principally on the force of the circumstantial evidence to prove a surrender in fact. The subsequent arguments (so well urged by Mr. Sugden) are founded principally upon considerations of policy and convenience, which, although they may be entitled to the greatest consideration, where the question is, whether a legal presumption ought to be established in such cases, are entitled to none, or rather are wholly inapplicable, where the conclusion is one of actual fact derived by a Jury. The very mention of the proposition is absurd, that a Jury, who are bound by their oath to pronounce according to the evidence, should decide contrary to their solemn conviction, on any collateral suggestion of convenience; as, for instance, because a purchaser is a favourite, either in a court of law or equity. If it be admitted that in the case of Doe v. Hilder no legal presumption of a surrender resulted from lapse of time, still, in such a case, where there is circumstantial evidence derived from the ordinary course of practice, as well as from the res gesta of the individual case, it is a question of fact for the Jury, whether such an assignment has been actually executed or not. If, in such a case, it appeared that such an uniform course of dealing and practice prevailed as is suggested by Mr. Sugden, it would afford a strong ground for the Jury to find, in point of fact, in the absence of any reason for supposing the contrary, that such ordinary course and practice had been adopted and followed in the particular instance; but this, it is obvious, is mere matter of evidence, to be found and acted upon, not by the Court, but by the * PRESUMPTIONS. PART IV. evidence. EVIDENCE, as has been seen, is either direct, where the Presumptive witnesses testify as to facts, of which they have had actual knowledge; or it is indirect, circumstantial, or presumptive (a), where the fact is not proved by direct evidence, but is deduced or inferred from one or more other facts, which are directly proved or admitted. According to this definition, circumstantial or presumptive evidence includes all evidence which is not positive and direct, without regard to its nature, intensity, and degree; whether the fact in issue be a necessary consequence from the circumstances proved, or whether, on the other hand, their tendency to establish the fact may be rebutted by proof to the contrary; whether the inference be made. by virtue of some previously known and ascertained connection between the disputed fact and those which are proved, or be a mere deduction of reason, exercised upon the special circumstances of the case, independently of the aid of connections pointed out by experience. A presumption may be defined to be an inference as Presumptions. to the existence of one fact, from the existence of some other fact, founded upon a previous experience of their connection. To constitute such a presumption, a previous experience of the connection between the known * 1235 and inferred facts is essential, of such a nature, that as soon as the existence of the one is established, admitted, or assumed, the inference as to the existence of the other immediately arises, independently of any reasoning upon the subject. It also follows from the above definition, that the inference may be either certain or not certain, but Jury. In the late case of Doe d. Fenwick v. Reed, which has already been adverted to, the great distinction between a legal presumption, founded upon mere length of possession, and on a finding by the Jury that a conveyance had actually been made, was acted upon by the Court; and it was held, that no legal presumption of a conveyance could be properly founded upon a long-continued possession, the origin of which had been accounted for; but that it had been properly left to the Jury to say, whether, under all the circumstances of the case, a conveyance had actually been executed or not. (a) The term presumptive has been used in this sense by English lawyers in contradistinction to positive and direct evidence, and consequently as including all evidence whatsoever arising from circumstances, whether conclusive or inconclusive in its nature. See Co. Litt. 6; Staundf. 179; 2 Haw. c. 45. s. 10; 1 St. Tr. 181. Lord. Coke, when he speaks of violent, probable, and light presumptions (Co. Litt. 6,) evidently means, not presumptions in their strict technical sense, but presumptive or circumstantial evidence. PART IV. Artificial * 1236 merely probable, and therefore capable of being rebutted by proof to the contrary (b). Presumptions thus defined are either legal and artificial, or natural. They are artificial, or presumptions of law presumptions. whenever they derive from the law any technical or artificial operation and effect, beyond their mere natural tendency to produce belief, and operate uniformly, without applying the process of reasoning on which they are founded to the circumstances of the particular case. They are, on the other hand, natural, where they act merely by virtue of their own natural efficacy. For instance, whenever a particular presumption arises from the lapse of a defined space of time, it is always in its nature artificial; for the evidence, when left to its own natural weight, is not confined within arbitrary and artificial boundaries. Thus, at * the expiration of twenty years, without payment of interest on a bond, or other acknowledgment of its existence, satisfaction is to be presumed; but if a single day less than twenty years has elapsed, the presumption of satisfaction from mere lapse of time does not arise. This is obviously an artificial and arbitrary distinction. No man's mind is so constituted that the mere lapse of the single day, which completes the twenty years, would absolutely generate in it a conviction or belief that the debt had been satisfied. But again; satisfaction may be inferred from the lapse of a shorter period, if it be rendered probable by other circumstances; for instance, from the lapse of nineteen years; here the lapse of time is to be taken into the account by the Jury in estimating the probability, whether, under all the circumstances, the debt has not been satisfied. Here, however, the lapse of time possesses no artificial or arbitrary operation, but is left to its mere natural tendency, to convince the minds of the Jury that the debt has been satisfied (c). (b) According to some writers, the term presumption is not strictly applicable where the inference is a necessary one, and absolutely conclusive, as where it is founded on the certain and invariable course of nature. See Evans's Pothier. If any practical advantage could be derived from this distinction, in thus limiting the meaning of the term, it would be proper so to use it, and to apply the more general term inference to all such inferences as are in their nature absolute and conclusive. Such a distinction appears however to be an unnecessary one; and it may be well doubted whether the distinction itself be founded on sound principles. The Roman lawyers used the term in the more extensive sense. Their præsumptio juris et de jure was conclusive. L. 3. L. 9. Ff. lib. 22, tit. 2. Heinecc. ad Pand. part 4, s. 122, 3, 4. (c) As artificial or legal presumptions are founded partly upon principles of policy and utility, independently of the real existence * Artificial or legal presumptions are also of two kinds, immediate and mediate. Immediate, are those 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 fact. If the fact B., to which a particular legal consequence 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 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. All these, either absolutely, or, provided there be no proof to the contrary, substitute the lapse of some definite period of time for proof of the fact. 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 anti PART IV. |