statute of limitations, is a mixed question of law and fact for the jury. Clarke v. Dutcher, 9 Cow. 674.

Presumptive evidence and the presumptions or proofs to which it gives rise are not indebted for their probative force to any rules of positive law; but juries, in inferring one fact from others which have been established, do nothing more than apply, under the sanction of the law, a process of reasoning, the force of which rests on experience and observation, and such inferences are presumptions of fact. Best, Presumptions, 15, § 14; Morgan v. Ravey, 6 Hurlst. & N. 265.

Presumptions are of two classes, natural and legal or artificial. The natural presumption is, when a fact is proved, wherefrom by reason of the connection founded on experience, the existence of another fact is directly inferred. The legal or artificial presumption is, where the existence of the one fact is not direct evidence of the existence of the other, but the one fact existing and being proved, the law raises an artificial presumption of the existence of the other. Forbearance to enforce a pecuniary demand for twenty years, is not direct evidence that the money has been paid, but on the fact of forbearance, the law builds a presumption that the demand has been satisfied, since it wisely supposes a man will sooner recover and enjoy what belongs, or is due to him, unless prevented by some impediment. The law gives to the evidence a technical efficacy beyond its simple and natural force and operation. Inasmuch then as this is but a presumptive bar, the fact which the lapse of time conduces to prove must be pleaded, and not the mere lapse itself. Gulick v. Loder, 13 N. J. L. 68.

§ 15. Presumptions of Fact.-Presumptions of fact are but inferences drawn from other facts and circumstances in the case, and should be made upon the common principles of induction. I am aware that many of the elementary writers have said that presumption may be looked upon as bold inferences pushed further than the facts established will strictly warrant. Gresley, Equity Ev. 372.

These extreme cases of forced and extravagant presumptions are very justly dealt with by Sir W. D. Evans (see appeal to Pothier, 331) where he says: "The principle adopted in Wilkinson v. Payne, 4 T. R. 468, is certainly very dangerous in its tendency, as it goes to subvert the main foundations of the distinction between truth and falsehood. He adds, many cases must

occur in the administration of justice, when the wishes of those who are to decide must, from the nature of the circumstances, be in opposition to the legal right, but if we once began to shake the rule, that the law is to command and the judges to obey; if we once admit the propriety of professing to believe as true, what we are actually convinced is not so, nobody can say where the deviation will stop, and legal certainty will be sacrificed at the shrine of judicial discretion." These views are quoted with approbation by Gresley, at page 374. Mr. Starkie, in speaking of this case of Wilkinson v. Payne and Standen v. Standen, 6 T. R. 331 n. (cited in 4 T. R. 469) says it may be very questionable, whether such decisions are not only contrary to sound policy, but even positively mischievous. He adds, do they not afford temptation to juries in hard cases, to trifle with the sacred obligation of an oath? 2 Starkie, Ev. 686, note f.

Still another definition is to the effect that "a presumption of fact is an inference of the existence of a certain fact arising from its necessary and usual connection with other facts which are known. The principle is recognized in criminal jurisprudence that proof of certain facts may lead irresistably to the presumption that another act, of which there is no direct proof, was committed or done. Men are presumed to act according to their own interests. It is presumed that regular and ordinary means are adopted for a given end. So where the means calculated to attain a certain end appear to have been adopted, and the end itself appears to have been attained, a particular completion will be presumed." 1 Phil. Ev.* 599–610; Roberts v. People, 9 Colo. 458.

"Presumptions of fact are inferences as to the existence of some fact drawn from the existence of some other fact; inferences which common sense draws from circumstances usually occurring in such cases." Presumptions of fact are derived from circumstances of the particular case, by means of the common experience of mankind. Kent v. People, 8 Colo. 563; Bouvier, Law Dict. title Presumption.

§ 16. Presumptions of Innocence.-The first presumption of criminal law-one of extended application and wide recognition, is that which presumes the innocence of the accused, and insists upon such evidence to the contrary as will establish guilt beyond a reasonable doubt. People v. Thayer, 1 Park. Crim. Rep. 595.

A defendant has this presumption of innocence with him through the whole case. The advantage he derives, however, from the fact that the burden is on the prosecution to make out the points it advances, is only temporary. As soon as this is done to such an effect as to sustain a verdict of guilty, then, should the proof close at that point, the case goes to the jury free from any presumptions arising from the prior imposition of this burden. Whart. Crim. Ev. § 322; Nevling v. Com. 98 Pa. 322; People v. Cheong Foon Ark, 61 Cal. 527; Jones v. State, 13 Tex. App. 1; Case v. People, 76 N. Y. 242.

While it is true that the recent possession of stolen property, unexplained, raises a presumption that the person in possession stole it; but this is only a rule of evidence, and the presumption may be overcome by the proof showing that the possession is not inconsistent with an honest intention. Housh v. People, 75 Ill. 487. Here we have an apt illustration of the extreme tenderness of the criminal law for persons accused of crime. And this presumption of innocence accompanies the suspect in all stages of the trial. A familiar passage will serve to emphasize this truth.

"In the investigation and estimate of criminatory evidence there is an antecedent prima facie presumption in favor of the innocence of the party accused, grounded in reason and justice, and recognized in the judicial practice of all civilized nations; which presumption must prevail until it be destroyed by such an overpowering amount of legal evidence of guilt as is calculated to produce the opposite belief. It must be admitted that in the aggregate, the number of convictions vastly exceeds that of acquittals, and that the probability is that, in a given number of cases, far the greater number of the parties accused are guilty; but according to all judicial statistics, and under every system, a considerable proportion of the persons put upon trial are legally innocent. In any particular case, therefore, the party may not be guilty, and it is impossible, without a violation of every principle of justice, to act upon the contrary presumption of a superior probability of guilt. It is, therefore, a settled and inviolable principle, that anterior to contrary proof, the accused shall be considered as legally innocent, and that his case shall receive the same dispassionate and impartial consideration as if he were really so." Wills, Circ. Ev. 147.

The law in its partiality to the presumption of innocence, will

insist that where conflicting presumptions supervene the stronger of the two must prevail; and that the presumption of innocence must be deemed superior.

This does not compromise the well known rule, which allows a presumption to be rebutted by a contrary presumption, which latter is more conclusive in its character.

Mr. Lawson in his well known work on "Presumptive Evidence," enters upon an able discussion of this subject, and defends his views with logic and ingenuity. He says at p. 458: "The presumption of sanity and the presumption of innocence coming in conflict, the latter must give way according to the best considered doctrine on this question. The subject is an important one, and has led to much discussion. The decisions are not harmonious, and no question is more debated at the present time, when it arises for actual decision, than the question of the burden of proof of insanity in criminal cases."

The absence of a motive for the commission of a crime, proved for the purpose of strengthening the presumption of innocence; and conversely, the presence of a motive may be shown to strengthen the hypothesis of guilt. This is well recognized logic under all systems of criminal jurisprudence.

In Danner v. State, 54 Ala. 127, 25 Am. Rep. 662, it was held that while the law presumes every one innocent, it does not presume anyone to have a good character, and a fortiori it will not presume chastity in a prosecutrix for rape.

So a witness is presumed to speak the truth. But this presumption may be repelled by the manner in which he testifies, by his interest in the controversy, by the character of his testimony, or by evidence affecting his character or motives, or by contradictory evidence.

§ 17. Presumptions of Legitimacy.-Upon this subject Mr. Stephen very aptly observes: "The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within such a time after the dissolution thereof and before the celebration of another valid marriage, that his mother's husband could have been his father, is conclusive proof that he is the legitimate child of his mother's husband, unless it can be shown either that his mother and her husband had no access to each other at any time when he could have been begotten, regard being had both to the date of the birth and to the

physical condition of the husband, or that the circumstances of their access (if any) were such as to render it highly improbable that sexual intercourse took place between them when it occurred. Neither the mother nor the husband is a competent witness as to the fact of their having or not having had sexual intercourse with each other, nor are any declarations by them upon that subject deemed to be relevant facts when the legitimacy of the woman's child is in question, whether the mother or her husband can be called as a witness or not, provided that in applications for affiliation orders when proof has been given of the non-access of the husband at any time when his wife's child could have been begotten, the wife may give evidence as to the person by whom it was begotten." Stephen, Dig. art. 98.

§ 18. Presumptions of Death.-A person shown not to have been heard of for seven years by those (if any) who, if he had been alive, would naturally have heard of him, is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death, but there is no presumption as to the time when he died, and the burden of proving his death at any particular time is upon the person who asserts it. There is no presumption as to the age at which a person died who is shown to have been alive at a given time, or as to the order in which two or more persons died who are shown to have died in the same accident, shipwreck or battle. Stephen, Dig. art. 99.

a. Raised by Continuous Absence for Seven Years.-The protracted absence of a person from his home and friends for a period of seven years, during which time he is not heard from, raises the presumption of death. Rosenthal v. Mayhugh, 33 Ohio St. 155; Rice v. Lumley, 10 Ohio St. 596; Holmes v. Johnson, 42 Pa. 159; Primm v. Stewart, 7 Tex. 183; Davie v. Briggs, 97 U. S. 628, 24 L. ed. 1086; Adams v. Jones, 39 Ga. 508; Proctor v. M'Call, 2 Bail. L. 298, 23 Am. Dec. 135; Lajoye v. Primm, 3 Mo. 529; Hoyt v. Newbold, 45 N. J. L. 219, 46 Am. Rep. 767; Stevens v. McNamara, 36 Me. 176, 58 Am. Dec. 740; Doe v. Flanagan, 1 Ga. 538; Spears v. Burton, 31 Miss. 554; Ashbury v. Sanders, 8 Cal. 62, 68 Am. Dec. 300; Godfrey v. Schmidt, 1 Cheves, Eq. 57; Moffit v. Varden, 5 Cranch, C. C. 658; Crawford v. Elliott, 1 Houst (Del.) 465; Hancock v. American L. Ins. Co. 62 Mo. 26; Smith v. Knowlton, 11 N. H. 196; King v.