the evidencing of ownership of personalty, particularly in cases of larceny or robbery, where a real dispute of ownership is rare.1 § 2516. Same: (2) Possession of Negotiable Instrument. Subject to some discriminations, the same presumption may be applied to the possession of a negotiable instrument, especially to one indorsed in blank or to bearer.1 § 2517. Payment: (1) Lapse of Time. The discharge of a claim by payment is often said to be presumed after a lapse of time depending on the circumstances of the particular case; the inference being based on the principle of Relevancy already examined (ante, § 159). But the multiplied statutes of limitation have reduced the occasions for invoking any other rule, and it is not frequent that a real rule of presumption is intended to be laid down.1 § 2518. Same: (2) Possession of Instrument or Receipt. A receipt is only an ordinary admission of payment, and is therefore not conclusive (ante, § 2432); but it is of course the strongest evidence, and some Courts seem to give it the force of a real presumption.' The obligor's possession of the instrument after maturity is usually said to raise a presumption of payment; Leport v. Todd, 32 N. J. L. 124 (a plaintiff in ejectment resting on adverse possession has the burden of showing that a possession originally permissive became adverse). Add some of the cases cited ante, § 1789: 1896, People v. Oldham, 111 Cal. 648, 44 Pac. 312 (robbery or larceny); 1901, Howard v. People, 193 Ill. 615, 61 N. E. 1016 (robbery); 1867, Sullivan v. Goldman, 19 La. An. 12 (presumption of plaintiff's continued ownership of a horse, held not overturned by presumption of ownership from defendant's possession); 1866, Vining v. Baker, 53 Me. 544 (trover); 1851, Magee v. Scott, 9 Cush. 148; 1865, Currier v. Gale, 9 All. 522; 1892, Com. v. Blanchette, 157 Mass. 486, 489, 32 N. E. 658 (obtaining goods by false pretences); 1900, Liscomb v. R. Co., 70 N. H. 312, 48 Atl. 284 (gift of decedent); 1877, Rawley v. Brown, 71 N. Y. 85 (replevin). For the application of this rule to property in possession of husband or wife, see the following cases: 1893, Farwell v. Cramer, 38 Nebr. 61, 66, 56 N. W. 716; 1886, Kingsbury v. Davidson, 112 Pa. 383, 4 Atl. 33. Sometimes a reverse presumption may be invoked, of possession from ownership: 1896, Edgeworth v. Wood, 58 N. J. L. 463, 33 Atl. 940 (that a wagon was owned by defendant shows prima facie that his servant was in control). 1 The following cases illustrate the scope of the rule: 1894, National Bank v. Emmitt, 52 Kan. 603, 35 Pac. 213; 1897, Jones v. Jones, 102 Ky. 450, 43 S. W. 412 (rule not applied to an unindorsed note held adversely to the payee's representatives); 1901, Battersbee v. Calkins, 128 Mich. 569, 87 N. W. 760; 1898, Saunders v. Bates, 54 Nebr. 209, 74 N. W. 578; 1898, New England L. & T. Co. v. Robinson, 56 id. 50, 76 N. W. 415; 1893, Halsted v. Colvin, 51 N. J. Eq. 387, 398, 26 Atl. 928. 1 Examples of the use of such a term are as follows: 1786, Oswald v. Leigh, 1 T. R. 270 (the defendant showed that he "had an estate in the plaintiff's neighborhood, and was constant and regular in all his payments "); 1829, Sellen v. Norman, 4 C. & P. 80 (presumption of wages paid, "if a servant has left a considerable time"); 1864, McCormick v. Evans, 33 Ill. 328 (after twenty years; here, money due under a contract to convey); 1879, Locke v. Caldwell, 91 id. 417, 421 (presumption not raised for a mortgage debt, where the statutory time of limitation had not run); 1898, Hollenbeck v. Ristine, 105 Ia. 488, 75 N. W. 355 (account stated); 1877, Jarvis v. Albro, 67 Me. 310, 313 (mortgage); 1894, Cox v. Brower, 114 N. C. 422, 423, 19 S. E. 365 (legacies; nor is it material that the legatees were non-residents, the domestic Courts being open to them); 1897, Young v. Doherty, 183 Pa. 179, 38 Atl. 587 (action on a note; the plaintiff's failure to mention it in the defendant's testator's lifetime, though "given to boasting of his means and the people in his debt,' and his failure to bring suit on it, not received to show a presumable payment); 1898, Devereux's Estate, 184 id. 429, 39 Atl. 225 (the insolvency of the debtor alone does not rebut the presumption); 1893, King v. King, 90 Va. 177, 17 S. E. 894 (after twenty-seven years, a tender being originally made, and the parties living near each other). 1 1897, Ramsdell v. Clark, 20 Mont. 103, 49 Pac. 591; 1872, Guyette v. Bolton, 46 Vt. 228, 234. Contra: 1897, Terryberry v. Woods, 69 Vt. 94, 37 Atl. 246 (on a plea of payment, proof of a receipt does not shift the duty of going forward). Such a presumption is sometimes applied to include prior instalments of the same obligation. Cal. C. C. P. 1872, § 1963, par. 10 (it is presumed "that former rent or installments have been paid when a receipt for later is produced "); 1853, Hodgdon v. Wright, 36 Me. 326, 336, semble; 1823, Brewer v. Knapp, 1 Pick. 337. the inference being based on the principle of Relevancy already considered (ante, § 156); but there are various limitations laid down, in particular, concerning the obligor's opportunity of surreptitious access to the obligee's papers.2 § 2519. Execution and Contents of Document: (1) Letters and Telegrams. The act of writing a letter or sending a telegram, and the addressee's receipt of the letter or telegram, give rise to questions both of the admissibility and the sufficiency of evidence. The same evidence is also sometimes said to raise a presumption. It is probable that no real presumption is meant to be predicated in the majority of these instances. For example, the receipt by Doe of an answer, through the mail or the telegraph, to his prior communication to Roe, is usually treated as sufficient evidence of Roe's authorship of the answer (ante, §§ 2153, 2154); and the mailing or depositing of Doe's letter or telegram to Roe is usually treated as sufficient evidence of Roe's receipt of it (ante, § 95); but it is seldom, except in the latter class of cases, that a burden of proof is deemed to be affected.1 § 2520. Same: (2) Execution of Deeds (Delivery, Date, Seal, Consideration). (a) In view of the importance, in early times, of the formality of delivery for a deed (ante, §§ 2405, 2408, 2426), it was natural that the evi With the following examples compare the cases cited ante, § 156: 1816, Gibbon v. Featherstonhaugh, 1 Stark. 225 (drawee's possession of a bill, held to be sufficient evidence); 1816, Brembridge v. Osborne, ib. 374 (possession of a note, said to "turn the scale"); 1816, Shepherd v. Currie, ib. 454 (possession of an order to deliver goods to bearer, held to shift the burden); 1894, Excelsior Mfg. Co. v. Owens, 58 Ark. 556, 563, 25 S. W. 868 (presumption applied to a note possessed after maturity); Cal. C. C. P. 1872, § 1963, par. 9, 13 (it is presumed "that an obligation delivered up to the debtor has been paid," and "that a person in possession of an order on himself for the paynient of money, or the delivery of a thing, has paid the money or delivered the thing accordingly "); 1891, Grimes v. Hilliary, 150 Ill. 141, 149, 36 N. E. 977 (maker having access to payee's papers as member of the family; no presumption); 1893, Erhart v. Dietrich, 118 Mo. 418, 428, 24 S. W. 128 (son taking care of demented payee-father; presumption not applied); 1893, Smith v. Gardner, 36 Nebr. 741, 55 N. W. 245 (maker's possession of a note does not raise a presumption, but is merely sufficient evidence); 1832, Alvord v. Baker, 9 Wend. 323 (like Shepherd v. Currie, supra); 1898, Poston v. Joues, 122 N. C. 536, 29 S. E. 951 (presumption applied to a note); 1902, Vann v. Edwards, 130 id. 70, 40 S. E. 853 (bond found after the death of the payee's administrator in the maker's possession, presumed paid); 1893, Collins v. Lynch, 157 Pa. 246, 256, 27 Atl. 721 (joint occupation of land by husband and wife; presumption not applied); 1899, Wilkinson's Est., 192 id. 117, 43 Atl. 466 (check and note of deceased husband found in a wife's possession; that she was executrix, held to raise no presumption that she had taken them. 38 1 The cases are collected in the places above cited. Compare also § 2135, ante (authentication as a rule of presumption). The following cases illustrate the judicial looseness of language: 1828, McCourry v. Suydam, 10 N. J. L. 245 (mailing a notice of trial raises a presumption and "stands for proof" of service; but an affidavit of non-receipt destroys the presumption"); 1897, State v. Howell, id. Atl. 748 (notice of claim; the above language quoted, with the extraordinary addition: "Öf course, if there is such a presumption as is assumed, it is one of fact for the jury," and then declining to hold that a refusal to charge such a presumption is erroneous, but recommending attention to the foregoing deliverance in this Court"; if they had recommended a page from the Sibylline books, they could not have left the trial judge in greater perplexity); 1899, Fairfield P. Co. v. Ins. Co., Pa. 44 Atl. 317 (no presumption of receipt ordinarily from the mailing of a letter; but the opinion inconsistently says that (1) there is no presumption except for notices of commercial paper, and (2) there is no presumption for a notice of insurance loss, if there is rebutting evidence; is there then a presumption, or no presumption, where there is no rebutting evidence?). dence of it should be strictly insisted on.1 But there came gradually to be conceded some sort of rule of sufficiency or presumption, based on evidence of the signing only; 2 the inference being based on principles of Relevancy already considered (ante, §§ 92, 102). But the diminished importance of delivery as a formality has also been marked by other rules, more genuinely rules of Presumption, and resting on a somewhat different principle of Relevancy (ante, §§ 148, 157); the grantee's possession may raise a presumption of delivery, and the registration of the deed may also raise it.1 6 (b) The date of the signing may be presumed from the purporting date of the document,5 as also the date of the delivery; though this might not always be made a rule of presumption. (c) The official seal on a document is not only evidence of the authenticity of the seal and the authority of the person affixing it, but is commonly held to create a presumption of these facts (ante, §§ 2161-2169), and sometimes even an official signature alone is given the same effect (ante, § 2167). Whether a certified copy of an official or registered document can raise a presumption that the original bore a seal is a question which has led to difference of judicial opinion (ante, § 2108). (d) Whether a negotiable instrument raises a presumption of a consideration, and whether a subsequent recorded deed raises a presumption of purchase for value without notice of a prior unrecorded deed, are questions which are inextricably entangled with the substantive law. § 2521. Same: (3) Ancient Documents. 1 Ante, 1726, Gilbert, Evidence, 99 ("unless the delivery be proved, there is no perfect proof of the deed, and there is no proof of the delivery but by a witness who saw the delivery "). 2 1792, Grellier v. Neale, Peake 146 (proof of handwriting raises a presumption of sealing and delivery); 1840, Burling v. Paterson, 9 C. & P. 570, 572 (the witness could recollect seeing the signing only; an inference of sealing and delivery was allowed). This was applied also to an act of criminal publication: 1839, R. v. Lovett, 3 State Tr. 1177, 1181 (seditious libel; proof of handwriting is presumptive evidence of publication). Conversely, a forging may be presumed from an uttering: 1899, State v. Williams, 152 Mo. 115, 53 S. W. 424. 3 Compare with the following the cases cited ante, § 157: 1893, Campbell v. Carruth, 32 Fla. 264, 271, 13 So. 432; 1896, Rohr v. Alexander, 57 Kan. 381, 46 Pac. 699; 1897, Jones v. N. Y. L. Ins. Co., 168 Mass. 66, 47 N. E. 92 (life insurance policy found among the intestate's papers, evidence of valid delivery). Contra: 1897, Bergere v. U. S., 168 U. S. 66, 18 Sup. 4 (possession of papers of grant by a grantee, held not to raise a presumption of delivery by the official having authority to grant). 1897, Davis v. Improvement Co., 118 Cal. 45, 50 Pac. 7; 1901, Egan v. Horrigan, 96 Me. 46, 51 Atl. 246. Compare the cases cited ante, § 1654 (admissibility of the registry of a deed); the substantive law, and statutory regulations, are here much involved. The authentic execution of a So, too, the registration may raise a presumption of execution generally; compare the cases cited ante, §§ 1651, 1676, with the following: 1898, Anderson v. Cuthbert, 103 Ga. 767, 30 S. E. 244; 1898, Flynn v. Sullivan, 91 Me. 355, 40 Atl. 136. 51834, Smith v. Battens, 1 Moo. & R. 341; 1834, Hunt v. Massey, 5 B. & Ad. 902; 1837, Goodtitle v. Milburn, 2 M. & W. 853; 1838, Sinclair v. Baggaley, 4 id. 312 (leading opinion); 1840, Anderson v. Weston, 6 Bing. N. C. 300; Cal. C. C. P. 1872, § 1963, par. 23 (it is presumed "that a writing is truly dated"); 1898, McFarlane v. Louden, 99 Wis. 620, 75 N. W. 394. Compare the rule for indorsements of payment as statements against interest (ante, § 1466). 61898, Conley v. Finn, 171 Mass. 70, 50 N. E. 460 (though acknowledged later); 1895, Kendrick v. Dellinger, 117 N. C. 491, 23 S. E. 438; 1873, Smiths v. Shoemaker, 17 Wall. 630, 637 (rule held not applicable to a letter whose admissibility depended on its actual date of delivery). 71881, Ames' Cases on Bills & Notes, II, 641, note 2; 1887, Perley v. Perley, 144 Mass. 104, 10 N. E. 726. The presumption of consid eration from a seal is of course only a rule of substantive law: 1895, Ames, Specialty Contracts and Equitable Defences, Harvard Law Review, IX, 49; 1901, Harriman, Contracts, 2d ed., § 142. 8 1897, Gratz v. Land & R. I. Co., 27 C. C. A. 305, 82 Fed. 381. specific document produced is also to be evidenced by the antiquity and custody of the document. With certain conditions, this is universally regarded as sufficient evidence for the jury (ante, §§ 2137-2146); and the language of presumption is also frequently applied by Courts to the same group of circumstances.1 § 2522. Same: (4) Lost Grant; Lost Documents in general. (a) When a specific document not produced is offered to be proved by copy, the fact of loss may be evidenced in various ways, and occasionally the force of a presumption is attributed to some of them (ante, § 1196). (b) When a title to land is to be proved, the execution, contents, and loss of the appropriate document of grant may be presumed from certain circumstances; the inference resting on a principle of Relevancy already considered (ante, §§ 148, 157). Those circumstances are the long-continued possession of the land (or an appurtenant right) by a party claiming as owner, the non-claim of possible opponents, and such other varying circumstances of the particular case as increase the probability of an origin of grant for the situation as a whole. The situation is in essence the same as that for which the statutes of limitation have been provided. But these statutes did not wholly obviate the occasion for such a presumption, partly because they were at first limited in the scope of rights barred by them and were extended only by gradual stages, and partly because their originally lengthy periods still left room for a presumption based on a shorter period of possession. For appurtenant rights (such as easements or fisheries), and rights transferable at common law by deed of grant without livery, this presumption had formerly a great vogue; and it remained supplementary to statutes of limitation. But the systematic extension of the principle of acquisition by limitation, the reduction of the required possession to short periods, and (in the United States) the practice of compulsory registration of deeds of conveyance, have left little scope for the presumption. How far it had progressed as a rule of presumption is not always clear; in some opinions it appears as merely a rule of sufficiency of evidence for the jury (ante, § 2494), in others it is a genuine presumption (ante, § 2490), and in still others it is apparently a rule of substantive law equivalent to a statute of limitation. Its bearings in a given jurisdiction are more or less dependent on the analogies of the local statutes.2 1 The cases are collected at the place above cited. 1 1818, Johnson, J., in Howell v. House, 2 Mill Const. 80, 85 ("It has been shown that a title may be presumed from length of possession alone; and why? Because it is improbable that a man of common sense and prudence would set down upon and improve lands to which he had no title, and more so that he who was the rightful owner would quietly stand by and see such a wrong done to himself"). 2 The following cases will illustrate its treatment by different Courts: Eng. 1774, Eldridge v. Knott, Cowp. 214, Mansfield, L. C. J.: 1799, Roe v. Reade, 8 T. R. 118 (conveyance of a trust estate); 1829, Doe v. Cooke, 6 Bing. 174 (surrender of a term); 1867, Bryant v. Foot, L. R. 6 Q. B. 161 (customary marriage fee; leading opinions, by Blackburn, J., and Cockburn, C. J.); 1903, Brocklebank v. Thompson, 2 Ch. 344, 350; Can.: 1879, Pugsley v. Ring, 2 Pugs. & B. 303, 316; U. S.: 1899, Gage v. Eddy, 179 Ill. 492, 53 N. E. 1008; 1830, Melvin v. Whiting, 10 Pick. 294 (fishery); 1839, Valentine v. Piper, 22 Pick. 85, 93 (shore land; leading opinion by Shaw, C. J.); 1867, Nichols v. Boston, 98 Mass. 39, 41 (shore land); 1892, Claflin v. R. Co., 157 id. 489, 499, 32 N. E. 659 (easement to cross a railway); 1894, Brown v. Oldham, 123 Mo. 621, 630, 27 S. W. 409; 1844, New Boston v. Dumbarton, 15 N. H. 201 (town charter); 1879, State v. Wright, 41 N. J. L. § 2523. Same: (5) Will (Execution and Revocation). (a) The execution of a will may be evidenced by the testimonial assertion of the attesters, implied from their signatures, even when they themselves cannot be brought to the stand (ante, §§ 1511, 1512). This is often spoken of as a presumption, though probably no more than a rule of sufficiency of evidence is intended.1 (b) The revocation of a will by destruction may be inferred, on a principle of Relevancy already considered (ante, § 160), from the fact that it once. existed but cannot be found at the testator's death. Whether this circumstance, with or without others, should create a rule of presumption, or of sufficiency of evidence, has been much debated. Other inferences, or rules of presumption, concerning an implied intention to revoke, are closely connected with the substantive law of revocation.3 The oppo § 2524. Same: (6) Spoliation or Suppression of Documents. nent's spoliation or suppression of evidential facts (ante, § 278), and particularly of a document (ante, § 291), has always been conceded to be a circumstance against him, and in the case of a document, to be some evidence that its contents are as alleged by the first party. But that a rule of presumption can be predicated is perhaps doubtful.1 § 2525. Same: (7) Alteration of Documents. It used to be sometimes said that an alteration (i. e., by erasure or interlineation), if apparent on the face. of an instrument, placed on the offering party the burden of explanation by evidence. It was also (but inconsistently) said by some that the alteration was to be presumed innocent, i. e., made before execution, unless particular circumstances of suspicion were apparent. For wills, again, it was sometimes. maintained that, by exception, alterations should be presumed to have been made after execution. But the modern tendency is to avoid stating the problem in the form of such rules with exceptions, and, in particular, to abandon the so-called presumption against fraud and in favor of innocence, by which the alteration of a deed is presumed to have been made before execution; and to raise no genuine presumption in that regard (ante, § 2485). The 478 (tax exemption); 1875, Carter v. Tinicum 2 The following cases illustrate the different views: 1858, Brown v. Brown, 8 E. & B. 876; 1868, Sprigge v. Sprigge, L. R. 1 P. & D. 608; 1900, Allan v. Morrison, App. Cas. 604; 1901, Scott v. Maddox, 113 Ga. 795, 39 S. E. 500; 1886, Re Page, 118 Ill. 576, 580, 8 N. E. 852; VOL. IV. 75 S. W. 389; 1903, Williams v. Miles, Nebr. 3 For the mode of proof of a lost will, see ante, §§ 2052, 2106. 1 The cases are collected in the places above cited. The following illustrate the use of language of presumption: 1895, Fox v. Mining Co., 108 Cal. 369, 41 Pac. 308 (the method of a trespasser's dealing with ore wrongfully mined was held not to be such as to raise this presumption against him so as to entitle the plaintiff to reckon the value by a particular standard); 1857, Thompson v. Thompson, 9 Ind. 323, 331 (presumption not conclusive); 1856, Hunt v. Collins, Ia. 56, 62; 1896, Hay v. Peterson, 6 Wyo. 419, 45 Pac. 1073 (books of account). 3569 |