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duty where it would result in show-
ing that another public officer had
failed in his duty. Weimer v. Bun-
bury, 30 Mich. 201, 216; Supervisors
V. Rees, 34 Mich. 481, 489.

The presumption that everything
that an officer did appears in his re-
turn is balanced by the presumption
that he performed his duty as re-
quired by law. Foster v. Berry, 14
R. I. 601.

43. " The rule is, in case of con-
flicting legal presumptions, the special
and favored must prevail, or take
precedence over the general. And the
practical operation of this rule we see
constantly exemplified in trials for
murder. In these trials for even cap-
ital offenses, we shall constantly find
the legal presumption of malice, aris-
ing from the use of a deadly weapon,
and we shall see this presumption
taking precedence over the general

Vol. IX



presumption of innocence, in the ab-
sence of any other evidence showing
circumstances of justification or ex-
cuse for the homicide." Hemingway
V. State. 68 Miss. 371, 417, 8 So. 317,
a prosecution of the treasurer for em-
bezzlement, in which it was held that
the presumption of innocence did not
overcome the presumption in favor
of the correctness of the defendant's
books showing him in default.

44. In cases of conflicting pre-
sumptions that which assumes in-
nocence of a criminal offense will be
adopted. Sharp v. Johnston, 22
Ark. 79.

In all cases of conflicting presump-
tions on the subject of legitimacy that
in favor of innocence shall prevail.
Senser v. Bower, i Penn. & W.
(Pa.) 450. See article "Legitimacy."

45. Kelly v. Drew, 12 Allen
(Mass.) 107, 90 Am. Dec. 138; Car-
roll V. Carroll, 20 Tex. 732; Lockhart
V. White, 18- Tex. 102. See Yates v.
Houston, 3 Tex. 433. 449; Rex v.
Twyning, 2 B. & Aid. 387, and ar-
ticles " Bigamy " and " Marriage."

The facts proved, however, out of
which the presumption of continued
life arises, may overcome the pre-
sumption of innocence. Hyde Park
V. Canton, 130 Mass. 505.

46. Although in a prosecution for
seduction the previous chastity of
the prosecutrix is presumed, this
presumption is overcome by the pre-
sumption of the defendant's inno-
cence. Walton V. State, 71 Ark. 398,
75 S. W. I. But see more fully inf7-a,
III, 9, D, c, and articles " Chastity "
and " Seduction."

47. There can be no presumption



PRESUMPTIOXS.



893



■ceedings/* continuance of marriage, •"* payment ;''" but there are'some
presumptions sufficient to overcome it,-'^ such as the presumption
of sanity,^^ knowledge of the law/''' and malice.''^

E. Other Presumptions. — It has been held that the presump-



that the celebration of a marriage
was legal in a prosecution for bigamy
where it would result in overcoming
the presumption of the defendant's
innocence. The burden is on the
prosecution in such case to prove a
strictly legal marriage. Weinberg v.
State, 25 Wis. 370. See also Lowery
7-'. People, 172 111. 466, 30 N. E. 165,
64 Am. St. Rep. 50; Squire r. State,
46 Ind. 459. But see article " Big-
amy," Vol. II, p. 418. n. II.

48. State v. Shelley. 166 Mo. 616,
66 S. W. 430.

49. Klein v. Landman, 29 Mo. 259.

50. Potter v. Titcomb. 7 Me. 302.
In cases of conflicting presumptions
the presumption of innocence is
stronger than the presumption of pay-
ment, as where an insolvent mer-
chant after assigning all of his prop-
erty except his exemptions to secure
a note to his sister-in-law for a sum
largely exceeding his exemptions was
shown to have subsequently had the
note in his possession after its ma-
turity, and it does not appear that
after the assignment he had acquired
means to pay the note, the presump-
tion is not that he had fraudulently
withheld assets enough to pay the
note, but that his possession of it
was consistent with good faith in
the execution of the assignment.
Excelsior Mfg. Co. v. Owens. 58 Ark.
556, 25 S. W. 868.

51. In a prosecution for making
obscene publications the defendant
contended that the presumption of
innocence was stronger than the pre-
sumption arising from proof of the
regular course of business of the
government employes in the postal
department, and that he was entitled
to an instruction to this effect. The
refusal to give such an instruction
was held no error. The court says :
" The position of the defendant in
this connection is that the presump-
tion of the defendant's innocence in
a criminal case is stronger than any
presumption, except the presumption
of the defendant's sanity, and the pre-
sumption of knowledge of the law,



and that he was entitled to a direct
charge that the presumption of the
defendant's innocence was stronger
than the presumption that the mes-
sengers who deposited these papers
in their proper boxes, took them from
the mails. If it were broadly true
that the presumption of innocence
overrides every other presumption,
e.xcept those of .sanity and knowledge
of the law, it would be impossible to
convict in any case upon circum-
stantial evidence, since the gist of
such evidence is that certain facts
may be inferred or presumed from
proof of other facts. ... It is
true that it is stated in some of the
authorities that where there are con-
flicting presumptions, the presump-
tion of innocence will prevail against
the presumption of the continuance of
life, the presumption of the continu-
ance of things generally, the pre-
sumption of marriage and the pre-
sumption of chastity. But this is
said with reference to a class of
presumptions which prevail inde-
pendently of proof to rebut the pre-
sumption of innocence, or what may
be termed abstract presumptions.
Thus, in prosecutions for seduction,
or for enticing an unmarried female
to a house of ill-fame, it is necessary
to aver and prove affirmativelv the
chastity of the female, notwithstand-
ing the general presumption in favor
of her chastity, since this general
presumption is overridden by the pre-
sumption of the innocence of the de-
fendant. . . . This rule, however,
is confined to cases where proof of
the facts raising the presumption has
no tendency to establish the guilt of
the defendant, and has no applica-
tion where such proof constitutes a
link in the chain of evidence against
him." Dunlop r. United States. 165
U. S. 486.

52. Cunningham 7'. State. 56 Miss.
J69. 31 .-Km. Rep. 360.

53. See article " Knowledce," Vol.
VIII.

54. Hemingway f. State. 68 Miss
371, 8 So. 317-

Vol. IX



894



PRESUMPTIONS.



tion ■ of validity of marriage prevails over the presumption of
continuance of life,^^ and continuance of insanity.^®

III. PAKTICULAR CLASSES OF PRESUMPTIONS.

1. Physical and Mental Condition and Capacity. — A. Gen-
erally. — In the absence of circumstances showing the contrary
a person is presumed to be in the possession of the normal faculties
of mind and body."^ Men of mature age are presumed to be
capable of sexual intercourse.^* The capacity of infants, physical
and mental, is elsewhere treated.^''

B. Sanity. — The presumptions as to sanity are fully discussed
elsewhere in this work.®**

C. Capacity for Procreation. — While in England it has fre-
quently been held that the fact that a woman has reached an age
at which women are ordinarily incapable of child-bearing, in con-
nection with other circumstances, justifies an inference that she
is incapable of procreation,*^^ nevertheless, it has been held in the
United States that such incapacity will never be presumed where
the devolution of property is thereby affected f^ and this latter



55. Johnson v. Johnson, 114 111.
611, 3 N. E. 232, 5 Am. Rep. 883.
See article " Marriage."

56. Where a man who has been
adjudged of unsound mind after-
wards marries a woman with whom
he lives for more than thirty years
in the relation of husband and wife.
the presumption of continued insan-
ity will not prevail as against the
presumption in favor of the legality
of the marriage. Castor v. Davis, 120
Ind. 231, 22 N. E. no.

57. A strong and healthy man al-
though of comparatively advanced
years is, in the absence of evidence
to the contrary, presumptively in the
full possession and enjoyment of his
faculties, including the senses of
sight and hearing. Green v. South-
ern Pac. Co., 122 Cal. 563, 55 Pac.

577-

58. Gardner v. State, 81 Ga. 144,
7 S. E. 144. And see infra, " Ca-
pacity For Procreation."

59. See articles " Infants " and
" Rape."

60. See article " Insanity."

61. In re Widdow's Trusts, L. R.
II Eq. 408; In re Taylor, 43 L. T. N.
S. 795 ; Davidson v. Kimpton. L. R.
18 Ch. Div. :2i3, 45 L. T N. S. 132;
Haynes v. Haynes, 35 L. J. Ch. 303 ;
In re Allason, 36 L. T. R. N. S.
653; Edwards v. Tuck, 23 Beav. 268;

Vol. IX



Liddon V. Ellison, 19 Beav. 565 ;
Brandon v. Woodthorpe, 10 Beav.
463; Dodd V. Wake, 5 De G. & Sm.
226; Brown v. Pringle, 4 Hare 124,
14 L. J. Ch. 121. But see Conduit v.
Soane. 24 L. T. N. S. 656; Cro.xton
7'. May, 9 Ch. Div. 388; Jee v. Aud-
ley, I Cox Ch. 324, i Rev. Rep. 46,
29 Eng. Reprint 1186.

In In re Millner's Estate, L. R. 14
Eq. 245, a woman aged forty-nine
years and nine months who had been
married twenty-six years without is-
sue to a husband still living was
presumed to be incapable of child-
bearing.

62. In re Apgar, t,7 N. J. Eq. 501 ;
Hill z'. Spencer, 196 111. 65. 63 N. E.
614.

In the devolution of estates the
laNv presumes that the possibility of
bearing children exists even when a
woman has passed the age to which
the ability to do so usually continues.
In fact this presumption exists no
matter what age the woman has
reached. List v. Rodney. 83 Pa. St.

483.

Conclusive Presumption — In mat-
ters relating to the character and
devolution of estates there is a con-
clusive presumption that a woman
never reaches an age when she is in-
capable of having issue. Flora v.
Anderson, 67 Fed. 182.



PRBSUMPTIOXS.



895



qualification seems to have been made in some English cases.*"
Men are presumed capable of procreation notwithstanding ad-
vanced age."^

2. Status. — A. Generally. — Parties to suits are presumed to
be adults until the contrary appears."" There is no presumption
that a particular person is married or unmarried"'' in the absence
of circumstances from which marriage may be inferred.*'^

B. Legitimacy. — The presumptions as to legitimacy are else-
where discussed in this work."^

C. Citizenship. — The presumptions as to citizenship are else-
where treated.""

3. Love of Life and Avoidance of Danger. — Owing to the well-
known natural instinct of self-preservation it is presumed in the
absence of contrary evidence that personal injuries were not self-
inflicted ;^*' hence, there is a presumption against suicide.^' and it
is held in many courts that there is also a presumption that an
injured person was in the exercise of due care at the time of his
injury. ''-

4. Regularity and Regular Course of Business. — A. Generally.
Numerous presumptions are based upon . the fact that a certain
course of conduct is usually followed in the doing of certain acts.'*



63. See In re White. (iQOi) i
Ch. 570, 70 L. J. Ch. 300, 84 L. T.
N. S. 199; In re Hocking, (igoi) 2
Ch. Div. 567, 67 L. J. Ch. 662, 79
L. T. N. S. 164.

64. Loniax v. Holmcden, 2 Str.
940; Lushington v. Boldero, 15 Beav.
I. See also Trevor v. Trevor, 2
Myl. & K. 675. 1102. And see Gard-
ner V. State, 81 Ga. 144. 7 S. E. 144.

65. Rowe v. Arnold, 39 Ind. 24.
See article " Ini-ancy."

66. There is no presumption that
a woman is married even though
she may long have been of mar-
riageable age. Erskine v. Davis. 25
111. 228. See Johnson v. Johnson,
170 Mo. 34, 70 S. W. 241, 59 L. R.
A. 748.

For the Presumption as to Con-
tinuance of marriage or a single
state, sec infra, this article III, 8,
H. b.

67. Where the defendant is de-
scribed in an information as a single
woman or not described as married,
if she pleads not guilty and fails to
plead in abatement, the presumption
is that she is single, but this is not a
conclusive presumption since she may
prove the contrary. United States v.
De Quilfeldt, 5 Fed. 276. See also
Seller v. People, 77 N. Y. 411.



68. See article " Legitim.\cv."

69. See article " Citizens asd
Aliens." Vol. III. p. 156.

70. Where it has been sufficiently
established by circumstantial evi-
dence that a person has suffered in-
jury by reason of falling from a dan-
gerous height, it will be presumed
in the absence of evidence to the
contrary that the fall was accidental.
Western Travelers' Ace. .-Vss'n v.
Holbrook, 65 Neb. 469. 91 N. W.
276, 94 N. W. 816. an action against
a mutual insurance company.

71. Sec article "Insurance." Vol.
VII, p. 552 et scq.

72. See article " Necljcence,"
Vol. VIII. p. 859, n. 15 and p. 89".

73. Where bank messengers, no-
taries and such official persons do
certain acts in the regular course
of their business tliousands of times
each year, this warrants a very sat-
isfactory inference that a particular
act of that class was done. Shove
V. Wiley. 18 Pick. (Mass.) 558.

In an action against a corporation
for a refusal to transfer stock on its
books to one who is in possession
of a certificate of the stock with the
usual assignment and power of at-
torney thereon executed in blank
by the original stockholder, it is pre-

Vol. IX



896



PRESUMPTIONS.



But these presumptions are of such an uncertain and unrelated
character that any attempt to collect or classify them all would
be useless and without the scope of this article.'^*

B. Sequence of Acts. — Where the legality of a transaction
depends upon the time when or order in which certain acts con-
stituting the transaction occurred, such acts will, in the absence of
contrary evidence, be presumed to have occurred at the time or in
the order customarily followed and necessary to make them legally
effective.''^

C. Custom. — Where a custom of doing a particular thing under
certain circumstances has been shown, it has been held that in a



sumed that the certificate was deliv-
ered to the person in possession of it
in the ordinary course of business on
the same principle that a deed found
in the hands of the grantee having
on its face the evidence of its regu-
lar execution is presumed to have
been delivered by the grantor. Hol-
brook V. New Jersey Zinc Co., 57
N. Y. 6i6.

It is presumed that abstracts of
title shown to be in the handwriting
of the abstracter were made on the
day of their date and in the regular
course of business. Chicago & A.
R. Co. V. Keegan. 152 111. 413, 39
N. E. 33. See article " Abstracts
OF Title/' Vol. I, p. 69, n. 12.

74. See the appropriate articles
where the particular, presumptions
pertaining thereto are discussed, as
for instance " Private Writings,"
and " Deeds."

75. Acts are presumed to have
been done in the order which would
render the conduct of the actor legal
and not fraudulent. Thus where a
person has given orders to two per-
sons, A. and B., on his debtor C, the
one to A. for a specified sum less
than the whole debt, and the one to

B. for the whole balance due from

C, the presumption is that the order
in favor of A. was given first.
James River and Kanawha Co. v.
Littlejohn, 18 Gratt. (Va.) 53.

Where the witness whose evidence
established the contents of a will
also stated that the last time he
read it before it was executed it
contained several blanks and it ap-
peared after the testator's death that
these blanks had been filled up in
his handwriting, it was held that
although it was possible from the

Vol. IX



evidence that the blanks were filled
either before or after execution, yet
the presumption of law would be in
favor of the right time to make the
instrument good, namely, that the
blanks were filled before the will
was signed and attested. Graham v.
O'Fallon, 4 Mo. 601.

The law presumes that the usual
and ordinary course of business has
been pursued in business transac-
tions ; hence, where a purchaser of
land on the same day that he re-
ceives his deed executes a deed of
trust for the benefit of his grantor,
it will be presumed that he executed
the trust deed after the deed to him
had been delivered. Ivy v. Yancey,
129 Mo. 501, 31 S. W. 937.

The law presumes that the signa-
ture of a guarantor upon a note was
placed upon it at the time it was ex-
ecuted. Duncanson v. Kirby, 90 111.
App. 15.

Where a deed of trust made to
secure the payment of certain notes
was executed prior to the execution
of a deed to defendant, in which
is assumed the payment of the notes,
it will be presumed that the ordinary
course of business was pursued, and
that the notes had been executed and
delivered when defendant assumed
their payment. Fitzgerald v. Bar-
ker, 85 Mo. 13.

Where there is doubt whether or
not a subscribing witness to an in-
strument signed it before the donor,
in the absence of proof to the con-
trary the presumption is that the
donor signed first in accordance with
the general presumption of regu-
larity. Hughes V. Debnam, 53 N.
C. 127.



PRESUMPTIOXS.



897



particular instance the presumption is that the custom was
followed.'"

D. Presumption of Receipt of Letters and Telegrams and
Other Documents. — a. From Mailing. — (i.) Generally. — A let-
ter properly stamped, directed to the addressee's post-office address,
and deposited in the regular receptacle for mail is legally presumed
to have been received by the addressee in the usual course of the
mails,"' and in such case a presumption is recognized by statute «n



76. Where in a suit after the loss
by fire of a quantity of rice depos-
ited in a mill, it was proved that
the general custom of the mill was to
give a receipt to the owner of the
rice delivered expressing the quan-
tity and terms of deposit, it was
held, in the absence of proof that
the custom was departed from in
this particular instance, that there
was a presumption that such a re-
ceipt was delivered to the plaintiff.
Ashe V. Derosset, 53 N. C. 240. See
article " Customs and Us.^ges," Vol.
Ill, p. 951, et seq.

77. United States — Kimberly v.
Arms, 129 U. S. 512, 529.

Arkansas. — Planters' IMut. Ins.
Co. V. Green, 72 Ark. 305, 80 S. W.

151-

Colorado. — Breed v. First Nat.
Bank, 6 Colo. 235.

Indiana. — Home Ins. Co. v. Mar-
pie, I Ind. App. 411, 27 N. E. 633.

Massachusetts. — Huntley v. Whit-
tier, 105 Mass. 391, 7 Am. Rep. 536
(distinguishing Crane v. Pratt, 12
Gray 348; Greenfield Bank v. Crafts,
4 Allen 447; Groton v. Lancaster. 16
Mass. no) ; Marston v. Bigelow, 150
Mass. 45. 22 N. E. 71, 5 L. R. .\.
43 ; Briggs v. Hervey, 130 Mass. 186.

Minnesota. — Melby z'. Osborne,
33 Minn. 492. 24 N. W. 253.

Missouri. — Ripley Nat. Bank v.
Latimer, 64 Mo. App. 321.

Nebraska. — National Masonic
Ace. Ass'n V. Burr, 57 Neb. 437, 77
N. W. 1098.

New Hamt>shire. — Sabre v. Smith,
62 Nf. H. 663.

Nezv York. — Hastings v. Brooklvn
L. Ins. Co.. 53 Hun 631. 6 N. Y.
Supp. 374; Hastings v. Brooklyn L.
Ins. Co., 63 Hun 624. 17 N. Y. Supp.
333.

Pennsxhania. — Jensen 7'. Mc-
Corkell.'i54 Pa. St. 323. 26 Atl. 3'36.
35 -A.m. St. Rep. 843; Whitmore z:



57



Dwelling House Ins. Co., 148 Pa.
St. 405. 23 .\t\. 1 131. iS .\m. St.
Rep. 838.

IVisconsin. — McDcrmott f. Jack-
son, 97 Wis. 64, 72 N. W. 375;
Small z: Prentice, 102 Wis. 256. 78
N. W. 415.

This presumption is sufficient to
require a proper preliminary show-
ing before secondary evidence of the
contents of the letter is admissible.
Watson f. Richardson. 1 10 Iowa
673. 80 X. W. 407.

Basis of Presumption The case

of Henderson z'. Carbondale Coal &
Coke Co., 140 U. S. 25, 37. while
holding contrary- to the general rule
that this is not a presumption of
law, correctly states its basis as fol-
lows : " This presumption, which is
not a presumption of law, but one
of fact, is based on the proposition
that the post-office is a public agency
charged with the duty of transmit-
ting letters; and on the assumption
that what ordinarily results from
the transmission of a letter through
the post-office probably resulted in
the given case. It is a prob.ibility
resting on the custom of business
and the presumption tliat the officers
of the postal system discharged their
duty." See also Rosenthal z\ Walker,
III U. S. iS^; Tanner ;■. Hughes, 53
Pa. St. jSo.

The Mailing of a Letter Counter-
manding an Order for goods raises
a presumption lliat it was duly re-
ceived by the addressee and places
upon the latter the burden of show-
ing the contrary. Merchants' Ex-
change Co. V. Sanders (.\rk.), 84 S.
W. 786 (citing Biirlinpton Ins. Co.
z: Threlkeld. 60 Ark. 539. 3i S. W.
265: Click r. Sample, 7i .Xrk. 194.
83 S. W. 9.^2).

When an Account Stated Is Sent
in the usual and customary way by
mail, it is presumed to have been

Vol. IX



898



PRESUMPTIONS.



some states^* This presumption arises without regard to the con-
tents of the letter, notwithstanding they are such that they would
tend to subject the party sending it to a penalty or forfeiture if the
letter were received.'^" In some cases, however, it is held that no
presumption of law arises from such facts, but merely a so-called
presumption of fact or inference.^" And it is sometimes difficult
to determine what some cases mean to hold owing to the confusing
use of the terms '' presumed," " presumption of fact " and "" prima
facie evidence."*^

(2.) Notices. — (A.) Generally. — In accordance with the rule pre-
viously stated as to the receipt of letters the presumption is that



duly received. Dick v. Zimmerman,
105 111- App. 615; citing Darby v.
Widow. 28 La. Ann. 605.

Sending a Check in a letter,
postage prepaid, addressed to a
party at his place of business, raises
a presumption that he received it.
Sutton V. Corning, 50 App. Div.
589. 69 N. Y. Supp. 670.

Withdrawal of Offer. — Where it
appeared that a notice of the with-
drawal of an offer had been mailed
with a return card in time to reach
the other party in due course of
mail, previous to the date of the
acceptance of the offer, it was held
that in the absence of rebutting evi-
dence the presumption that the notice
had been received in due time was
conclusive. " In this case the pre-
sumption of the receipt of the letter
is strengthened by the fact that it
was never returned to the defendant,
either in obedience to the direction
of the return card on the envelope,
or through the dead letter office."
Sherwin v. National Cash Reg. Co.,
5 Colo. App. 162, 38 Pac. 392.

Change of Address — " So, if a
party has changed his place of busi-
ness, and has informed the post-
office authorities of it, there is a
presumption or inference that the
letter has been delivered at the new
address." Marston v. Bigelow, 150
Mass. 45, 22 N. E. 71, 5 L. R. A. 43-

78. St. Vincent's Inst. v. Davis,
129 Cal. 20, 61 Pac. 477; Grade v.
Mariposa County, 132 Cal. 75, 64
Pac. 117 ( C. C. P. §1963, subd.
24 ) ; Williams v. Culver, 39 Or.
2,2,7, 64 Pac. 763 ( Hill's Ann. Laws,
§ 776, subd. 24 ) .

79. Rosenthal v. Walker, in U.
S. 185.

Vol. IX



80. United States. — Henderson
V. Carbondale Coal & Coke Co., 140
U. S. 25, 37; United States v. Bab-
cock, 3 Dill. 571, 24 Fed. Cas. No.
14,485 ; Uhlnian v. Arnholdt & Schae-
fer Brew. Co., 53 Fed. 485.

Connecticut. — See President, etc.,
of Hartford Bank v. Hart, 3 Day
491, 3 Am. Dec. 274.

Massachusetts. — Greenfield Bank
V. Crafts, 4 Allen 447.

Pennsylvania. — First Nat. Bank
V. McManigle, 69 Pa. St. 156, 8 Am.
Rep. 236; Tanner v. Hughes, 53 Pa.
St. 289.

Rhode Island. — Russell v. Buck-
ley, 4 R. I. 525, 70 Am. Dec. 167.

Although a letter containing an ex-
ecution is deposited in the post-of-
fice, properly addressed to the officer
at his place of residence, this raises
no presumption that it was received.
Woodman v. Jones, 8 N. H. 344;
citing Groton v. Lancaster, 16 Mass.
no.

Where One Town Calls Upon An-
other Town for the Removal of a
Pauper, the fact that the notice re-
quired by statute was mailed raises
no presumption that it was received.
The ordinary presumption in such
case would not arise, because it is
not the duty or business of municipal
officers in country towns to watch
the arrival of "mails. Groton v.
Lancaster, 16 Mass. no. But see
Augusta V. Vienna, 21 Me. 298.

81. See Huntley v. Whittier, 105
Mass. 391, 7 Am. Rep. 536; Crane v.
Pratt, 12 Gray (Mass.) 348; Sulli-
van V. Kuykendall, 82 Ky. 483, 56
Am. Rep. 901 ; Susquehanna Mut.
F. Ins. Co. V. Tunkhannock Toy Co.,
97 Pa. St. 424, 34 Am. Rep. 816;



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