gacy, or plené administravit, and the like,) the proof ought to be according to the principles and courts of the common law; and if they disallow the plea, because it is proved only by a single witness, they may be controlled by a prohibition. (1) SECT. II. Of the Nature of Presumptive Evidence. tive evi dence. EVIDENCE Consists either of positive or of presumptive Presumpproof. The proof is positive, when a witness speaks directly to a fact from his own immediate knowledge; and presumptive, when the fact itself is not proved by direct testimony, but is to be inferred from circumstances, which either necessarily or usually attend such facts (2). It is obvious therefore, that a presumption is more or less likely to be true, according as it is more or less probable, that the circumstances would not have existed, unless the fact, which is inferred from them, had also existed; and that a presumption can only be relied on, until the contrary is actually proved. In order to raise a presumption, it cannot be necessary to confine the evidence to such circumstances alone, as could not have happened, unless they had been also attended by the alleged fact, for that in effect would be to require in all cases evidence amounting to positive proof;— but it will be sufficient to prove those circumstances, which usually attend the fact. If the circumstantial evidence be such, as may afford a fair and reasonable presumption of the facts to be tried, it is to be received and left to the consideration of the jury, to whom alone it belongs to determine upon the precise force and effect of the circumstances proved, and whether they are sufficiently satisfactory and convincing to warrant them in finding the fact in issue (3). - (1) Sir W. Juxon v. Lord Byron, 2 Lev. 64. Richardson v. Disborow, 1 Ventr. 291. Shotter v. Friend, Carth. 142. 1 Ld. Ray, 221. Cowp. 424. Com. Dig. tit. Prohibition, (F. 13.) (2) Gilb. Ev. 142. How However, for the purpose of trying the weight and effect of such presumptive proofs, it will often be of the utmost consequence to consider, whether any other fact happened, which might have been attended by the same circumstances, and with which of the facts they are most consistent. It has been very justly observed (1), that when the proofs are dependant on each other, or when all the proofs are dependant upon one, the number of proofs neither increase nor diminish the probability of the fact; for the force of the whole is not greater than the force of that, on which they depend; and if this fails, they all fall to the ground. But when the proofs are distinct and independant of each other, the probability of the fact increases in proportion to the number of the proofs; for the falsehood of one does not diminish the veracity of another. Pr. Ev. of The fact of the birth of a child during a lawful marriage legitimacy. is primâ facie evidence of its legitimacy. Formerly the rule was so strict, that children were presumed to be legitimate, unless the husband had been out of the kingdom during the whole time of gestation; but this doctrine has been long exploded. The general principle, to be deduced from the authorities on this subject, as it was laid down and confirmed by the case of the King v. Luffe (2), appears to be this, that where there are circumstances, which shew an impossibility that the husband could be the father, whether arising from his being under the age of puberty, or from his labouring under disability occasioned by natural infirmity, or from the length of time elapsed since his death, or from his continued absence, the presumption is at an end, and the child will be deemed illegitimate. In an earlier case (3), the court of King's Bench held, that there was no necessity to prove the impossibility, if the other circumstances of the case tended strongly to repel the pre (1) Beccaria, ch. xiv. (3) Goodright, dem. Tompson, ♥. Saul, 4T,R. 356. sumption sumption of access. And this point has been since established by the opinion of the Judges in the case of the Banbury claim of peerage (1), in which it was held, that, where the husband and wife are not proved to be impotent, and have had opportunity of access to each other during the period, in which a child could be begotten and born in the course of nature, the presumption of legitimacy arising from the birth of the child during wedlock may be rebutted by circumstances inducing a contrary presumption: and the fact of non-access (that is, the non-existence of sexual intercourse,) as well as the fact of impotency, may always be lawfully proved by means of such legal evidence, as is strictly admissible in every other case, where a physical fact is to be proved. It has been held, that, in the case of a divorce à mensá et thoro, a child born after such a separation is presumed to be illegitimate (2); in this case, therefore, the party, who asserts the child's legitimacy, will have to prove access. A receipt for rent due on a certain day is strong pre- Of payment. sumptive evidence, that the former rents have been regularly paid down to that time. But it is only presumptive evidence; and the other party will be allowed to prove the contrary. "If a man gives a receipt for the last rent, says Ch. B. Gilbert (3), the former is presumed to be paid, because he is supposed first to receive and take in the debts of the longest standing; especially, if the receipt be in full of all demands, then it is plain there were no debts standing out; and if this be under hand and seal, the presumption is so strong, that the law admits of no proof to the contrary." So in an action for work and labour done for the defendant, proof that the plaintiff and other workmen, who were employed by the defendant, came regularly to receive their wages from the defendant, whose practice was to pay every week, and that the plaintiff had not been heard to complain (1) 2 Selw. N. P. 681. MS. (2) Parishes of St. George v. St. argaret, 1 Salk. 123. (3) Gilb. Fv. 142. Pr. Ev. of However, for the purpose of trying the weight and effect of such presumptive proofs, it will often be of the utmost consequence to consider, whether any other fact happened, which might have been attended by the same circumstances, and with which of the facts they are most consistent. It has been very justly observed (1), that when the proofs are dependant on each other, or when all the proofs are dependant upon one, the number of proofs neither increase nor diminish the probability of the fact; for the force of the whole is not greater than the force of that, on which they depend; and if this fails, they all fall to the ground. But when the proofs are distinct and independant of each other, the probability of the fact increases in proportion to the number of the proofs; for the falsehood of one does not diminish the veracity of another. The fact of the birth of a child during a lawful marriage legitimacy. is primâ facie evidence of its legitimacy. Formerly the rule was so strict, that children were presumed to be legitimate, unless the husband had been out of the kingdom during the whole time of gestation; but this doctrine has been long exploded. The general principle, to be deduced from the authorities on this subject, as it was laid down and confirmed by the case of the King v. Luffe (2), appears to be this, that where there are circumstances, which shew an impossibility that the husband could be the father, whether arising from his being under the age of puberty, or from his labouring under disability occasioned by natural infirmity, or from the length of time elapsed since his death, or from his continued absence, the presumption is at an end, and the child will be deemed illegitimate. In an earlier case (3), the court of King's Bench held, that there was no necessity to prove the impossibility, if the other circumstances of the case tended strongly to repel the pre (1) Beccaria, ch. xiv. (3) Goodright, dem. Tompson, . Saul, 4T,R. 356. sumption sumption of access. And this point has been since established by the opinion of the Judges in the case of the Banbury claim of peerage (1), in which it was held, that, where the husband and wife are not proved to be impotent, and have had opportunity of access to each other during the period, in which a child could be begotten and born in the course of nature, the presumption of legitimacy arising from the birth of the child during wedlock may be rebutted by circumstances inducing a contrary presumption: and the fact of non-access (that is, the non-existence of sexual intercourse,) as well as the fact of impotency, may always be lawfully proved by means of such legal evidence, as is strictly admissible in every other case, where a physical fact is to be proved. It has been held, that, in the case of a divorce à mensâ et thoro, a child born after such a separation is presumed to be illegitimate (2); in this case, therefore, the party, who asserts the child's legitimacy, will have to prove access. A receipt for rent due on a certain day is strong pre- Of payment. sumptive evidence, that the former rents have been regularly paid down to that time. But it is only presumptive evidence; and the other party will be allowed to prove the contrary. "If a man gives a receipt for the last rent, says Ch. B. Gilbert (3), the former is presumed to be paid, because he is supposed first to receive and take in the debts of the longest standing; especially, if the receipt be in full of all demands, then it is plain there were no debts standing out; and if this be under hand and seal, the presumption is so strong, that the law admits of no proof to the contrary." So in an action for work and labour done for the defendant, proof that the plaintiff and other workmen, who were employed by the defendant, came regularly to receive their wages from the defendant, whose practice was to pay every week, and that the plaintiff had not been heard to complain (1) 2 Selw. N. P. 681. MS. (2) Parishes of St. George v. St. argaret, 1 Salk. 123. (3) Gilb. Fv. 142. |