Disputable presumptions generally. Presumptions are only indulged to supply the absence of facts. There can be no presumption against ascertained and established facts: Nieto v. Carpenter, 21 Cal. 456. But disputable presumptions, unless overcome by evidence, are rules of law indisputable for the case in which they arise, and the court is bound to apply them: Kidder v. Stevens, 60 Id. 414, 419; Salmon v. Symonds, 24 Id. 264. When testimony is equally consistent with two things, it proves neither: Ellis v. Great Western R. R. Co., L. R. 9 Com. P. 551.

Innocence. - When a criminal charge is to be established by circumstantial evidence, the proof ought to be not only consistent with the prisoner's guilt, but inconsistent with any other rational conclusion: Hodges's Case, 2 Lew. C. C. 227; and see Rippey v. Miller, 62 Am. Dec. 179, and the extended note thereto on the subject of circumstantial evidence. Where there is a conflict of this presumption, with presumption of continuance of life in bigamy cases, the presumption of innocence prevails: People v. Eilen, 58 Cal. 218; see also discussion of this interesting question in note to Cameron v. State, 48 Am. Dec. 115; and see, generally, in a note to State v. Hodgkins, 36 Id. 475, under the topic of proof of marriage in criminal cases.

As to the effect of the presumption raised by deliberate use of a deadly weapon causing death, when considered with this provision. See the note to the preceding section.

Unlawful act. As an instance of the presumption that an unlawful act is done with an unlawful intent, it is held that on a charge of murder, malice is presumed from the killing, when unaccompanied with circumstances of extenuation, and the burden of disproving the malice is thrown upon the accused: York's Case, 9 Met. 93; but see the dissenting opinions, and also Commonwealth v. Hawkins, 3 Gray, 465; State v. McDonnell, 32 Vt. 491. The same presumption arises in civil actions where the act complained of was unlawful: Bromage v. Proser, 4 Barn. & C. 247.

9 Cal. 430; Tobin v. Shaw, 45 Me. 331; Oct, 11, 1862, $766. S. C., 71 Am. Dec. 547.

Possession. That men own the property they possess is presumed in absence of proof: Magee v. Scott, 9 Cush. 150; Fish v. Scut, 21 Barb. 333. The rule was applied in case of a vessel: Bailey v. New World, 2 Cal. 373; chattels: Goodwin v. Garr, 8 Id. 617; Wright v. Solomon, 19 Id. 76; S. C., 79 Am. Dec. 196; Dow v. Gould & Curry S. M. Co., 31 Cal. 649; negotiable instruments: Palmer v. Goodwin, 5 Id. 460; McCann v. Lewis, 9 Id. 246; real property, water, etc.: Hutchinson v. Perley, 4 Id. 34; S. C., 60 Am. Dec. 578; Hobbs v. Duff, 43 Cal. 485; Donahue v. Gallavan, 43 Id. 574; Thompson v. Pioche, 44 Id. 516; Pierce v. Murat, 45 Id. 281. The possession of one tenant in common, or joint tenant, is presumed to be the possession of all: Colman v. Clements, 23 Id. 247. Owen v. Morton, 24 Id. 376. The cutting of timber, by itself, is neither possession nor title: Stockton v. Garfrias, 12 Id. 316. The possession of the servant that of the master: Goodwin v. Garr, 8 Id. 61.A defendant in ejectment, entering under a deed executed by order of a court of competent jurisdiction, enters under color of title. He is not a naked trespasser, and may set up an outstanding title in a third person. Mere prior possession of land cannot prevail against the present possession of defendant, taken under claim of title derived, regularly or not, from the rightful owner: Gregory v. Haynes, 13 Id. 592. Possession of land at the death of a party gives prima facie title to his heirs or representatives: Gregory v. McPherson, 13 Id. 562. The fact that a party had cattle on the land, or was there for short periods himself, or that he claimed within given limits, is, in the absence of any inclosure, or some visible physical signs of the extent of his boundaries or claim, insufficient to show the fact of possession of any particular tract when others were also in possession: Wilson v. Corbier, 13 Id. 166.

Mere entry upon public land, without inclosing it, does not give a right to an action upon the strength of the possession alone: Wright v. Whitesides, 15 Cal. 47. Each person mining in the same stream is entitled to use in a proper and reasonable manner both the channel of the stream and the water flowing therein: Esmond v.

Chew, 15 Cal. 143. The mere inclosure of a lot with brush fence from two to three feet high, without any other steps being taken to subject the property to any use, is not evidence of possession: Hutton v. Schumaker, 21 Id. 453.

Placing a fence, consisting of small posts with two rails nailed on, around a piece of land, without actually occupying the land, or any part of it, and suffering the fence to go to decay in a year or two, so that it will not keep out cattle, is not sufficient to constitute prima facie evidence of title to land by actual possession: Borel v. Rollins, 30 Cal. 408; Baldwin v. Simpson, 12 Id. 560. Personal residence, though an act of possession, is not a sine qua non. Possession by a tenant is equally significant and available: Barstow v. Newman, 34 Id. 91.

Possession of fruits of crime. The rule above stated does not apply to possession of fruits of a crime recently after its commission, but the presumption is of guilt of the crime in course of which the property was taken: See the extended note on this topic in Hunt v. Commonwealth, 70 Am. Dec. 449; 1 Greenl. Ev., sec. 34.

Ownership. That ownership may be proved by reputation, see Wilson v. Maddock, 5 Or. 481; and declarations of one who was in possession and who has died are admissible for this purpose: Bartel v. Lope, 6 Id. 321.

Due appointment to office presumed in exercising the office: Dolph v. Barney, 5 Or. 192; Cohas v. Raisin, 3 Cal. 453; Downer v. Smith, 24 Id. 121; People v. Clingan, 5 Id. 389; People v. Roberts, 6 Id. 215; Mott v. Smith, 16 Id. 552; Dexter v. Hayes, 11 Ir. L., N. S., 106. The same principle has been applied to the appointment of a guardian among whose papers his bond and oath could not be found, but who acted as guardian, and was recognized as such: Brady v. Reese, 51 Id. 447.

Official duty regularly performed, etc.: Dolph v. Barney, 5 Or. 192; Ross v. Read, 1 Wheat. 482; Nelson v. People, 23 N. Y. 293; Reynolds v. West, 1 Cal. 323; Sannickson v. Brown, 5 Id. 57; Summers v. Dickinson, 9 Id. 554; Payne v. Treadwell, 16 Id. 227; Keane v. Cannovan, 21 Id. 300; People v. Holden, 28 Id. 133; Weaver v. Fairchild, 50 Id. 360. In the absence of other evidence, acts of officers will be presumed to be

official in their character: Balcom v. Northup, 9 Minn. 172; Portland v. Besser, 10 Or. 242; and in the absence of evidence, their acts will be presumed to be within their authority: Jones v. Muisbach, 26 Tex. 235. Such presumption in regard to the performance of duty by municipal officers does not raise the presumption of existence of money in the treasury to pay a warrant held by plaintiff: Coburn v. Ames, 55 Cal. 385. The presumption as to regularity of official acts will help out a notary's certificate in which there is no venue: Reavis v. Cowell, 56 Id. 589.

Identity: People v. Rolfe, 61 Cal. 540. See the rule in the above section followed in Thompson v. Manrow, 1 Cal. 428 (citing Cowen and Hill's Notes, 1301, and cases there cited; 1 Greenl. Ev., sec. 575, in note); Mott v. Smith, 16 Cal. 554; Jackson v. Boneham, 15 Johns. 226; Carlton v. Townsend, 28 Cal. 219, a case of identity of name in two deeds, in one of which B. T. Black, described as of Oroville, in the county of Butte, was grantor; and in a previous deed B. T. Black, of the city of San Francisco, was grantee; see also Douglass v. Dakin, 46 Id. 49. The rule applies to houses as well as persons: People v. Thompson, 28 Id. 218.

Where one of the deeds under which the appellant claimed, and which purported in the body of it to have been made by Edward Jones, appeared in such copy and in the book of records as signed by Edmund Jones, but by the certificate of the proof of the execution of this deed it appeared that the execution was by Edward Jones, and Edward Jones was the person through whom the appellant claimed title, it was held that the execution by Edward Jones was established, notwithstanding the use by him of another christian name than his own, and the defect was harmless: Middleton v. Findla, 25 Cal. 78; Addy v. Grix, 8 Ves. 504; Harrison v. Harrison, 8 Id. 185; Baker v. Dening, 8 Ad. & É. 94; Merchants' Bank v. Spicer, 6 Wend. 443; Brown v. Butchers' and Drovers' Bank, 6 Hill, 443; S. C., 41 Am. Dec. 755.

Sales of personal property. — Retention of possession by the vendor creates disputable presumption: McCully v. Swackhamer, 6 Or. 438; Monroe v. Hussey, 1 Id. 188; Orton v. Orton, 7 Id. 478; Jacobs v. Ervin, 9 Id. 53.