Gambar halaman




of his pigments covers his canvas with the glaring the purpose of making up their goods into clothing images of natural objects, and his tent, bins, cam- for their customers, whom they charged for the era stand, camera box, head-rest, bath-holder, etc., cloth of which the clothing was made, as well as for are no more tools within the meaning of the exemp- the labor and skill of making them up. tion laws han the tent, stool, easel, hand-rest, | During the time they had license they would somebrushes, pigment box, and paints, glaze, etc., of the times sell a piece of cloth, or some article of trimpainter.”

ming or buttons, to a customer, without being made NEEDLESS TORTURE OR MUTILATION. — Trapping up, but since they had failed to take out a license a trespassing and depredating dog is not “needlessly they had ceased to sell any articles unless made up torturing or mutilating” within a statute against into clothing. * We think there can be no cruelty to animals. Hodge v. State, 11 Lea, 528. question but that the defendants were merchants The dog in question had annoyed the defendant by within the meaning of the statute above quoted, invading his premises at night, breaking up his and were bound to obtain a license in order to carry hens' nests, and sucking the eggs. The defendant on business in the manner above stated." set a steel trap and caught the dog, and in his BRIDGE.-In Smith Bridge Co.v. Bowman, Ohio Sustruggles to get away part of his tongue was torn preme Court, February, 1884, it was held that a railout. The dog lost his power of barking, and from road bridge is within the mechanics’ lien law. In a inability to eat became very lean. The court said: dissenting opinion, Granger, C.J., said: "In its widest “There can be no doubt, we think, that in doing sense the word bridge' applies to any sort of so his object was, by catching the animal, to pro- structure extending from one point of support across tect his property, and relieve his premises from these an open space to another point of support, and of depredations, and not for the purpose of inflicting sufficient strength to permit the transit of some matneedless torture upon the animal.

The erial object. But the usage of the people often defendant had a right to protect his premises takes charge of a word, and so applies it, that when against such invasions, and to adopt such means as uttered, or written, without accompanying words, were necessary for that purpose.

A lit- or context, the hearer or reader understands that the eral construction of this act would seem to indicate speaker or writer refers to one of a particular class that no one is permitted to kill or wound any liv- of objects instead of any one of many classes eming creature, however noxious, even a black bird braced by the fullest meaning of the word. Before or a crow, or a skunk, or a serpent, unless under any railroad was constructed, the word 'bridge' in some necessity, without being guilty of a penal of- connection with roads and highways had, by the fense. We do not understand such to be the mean- people, been thus applied to structures across ing of this act. Whilst its object was to prevent steams for the passage of travellers in ordinary cruelty to animals, and it was intended as a humane modes. A road led up to each end of such a strucprovision for their protection, it was not intended ture. The traveler left the road and entered upon to deprive a man of the right to protect himself, the bridge, and again left the bridge and took to the his premises and property, against the intrusions road. Constructively, in a legal sense purely, the of worthless, mischievous or vicious animals, by road sometimes crossed the bridge, and the bridge such means as are reasonably necessary for that was, sometimes, in like manner a part of the road; purpose.”

but actually, in fact, the bridge was distinct from HEIRS. — The husband is not the "heir " of the the road. Popularly then the word 'bridge' came wife. Wilkins v. Ordway, 59 N. H. 378. The court to mean a structure whose primary object was the said: “But husband and wife are nowhere included support of persons, animals and vehicles while crosswith ‘heirs ' or 'next of kin' in the statutes. These ing a stream or ravine. This meaning belonged to terms, in their proper and legal signification and the word when the first railroad bridge was built. acceptation, have reference to relationship by blood.” What is the primary object of such a bridge? What This decision is a reasonable complement of the is the thing being constructed while it is being decisions that hold that the wife is not the “heir "

built? A railroad." of the busband.

ROUNDING A POINT. In The Margaret, June, 1884, MERCHANT. — In Murray v. State, 11 Lea, 218, it 50 L. T. Rep. (N. 8.) 447, the court said, Brett, M. was held that a merchant tailor is a “merchant.” R.: “ The question to be considered is, what is the The court said: “The facts proven on the trial meaning of the rule which says that 'steam vessels were, that the defendants were copartners and car- navigating against the tide shall, before rounding ried on the business of merchant tailors in Memphis. the following points, viz.: Blackwall Point, ease They kept on hand a stock of goods, which they their engines, and wait until any other vessels roundpurchased outside of the State, and made them up ing the point with the tide have passed clear'? It into clothing and sold them upon orders of their seems to me that the first thing to be considered is, customers. When a customer desired a suit of what is the meaning of 'point?' Now it is clear clothes or a garment they permitted him to select that the officers of this vessel knew what was meant. from their stock the particular piece of cloth or stuff It is a nautical rule, and is written therefore in he desired them made of, and they took his meas- nautical language, and it is written with regard to ure and made up the articles of clothing and sold a winding river where there are what sailors call them to him. They kept in their employ tailors for points,' that is, where the land goes from a straight

line into the river, so that the river is obliged to counts to one of his creditors. The presumption is wind round the point. Therefore the point is not a

that this was done with the intention of giving a pre

ference to such creditor.(5) mathematical point, and it seems to me that the

5. A married man euters a house of prostitution and proper way of defining the point’under these cir

remains there all night. The presumption is that he cumstances, is this: that the point begins where a committed adultery while there.(6) vessel having to go round it, either up or down the 6. A wife who resided in Massachusetts goes to Maine river, would, if there were nothing in the way, be

and immediately applied for and obtains a divorce for obliged to use its steering gear for the purpose of

causes not a ground for divorce in Massachusetts.

The presumption arises that her purpose in removing continuing her course, and that it ends where the

to Maine was to obtain a divorce.(7) necessity of using the steering gear ceases. There

7. A statute provides that certain conveyances made fore the point lies within those limits. The next with intent to give a preference to certain creditors question is, wbat is the meaning of 'before round

shall be void. A. makes a conveyance whose prorising the following points'? Is it before a vessel

ions prefer certain creditors. The presumption is that

A. intended to give a preference.(8) begins to round, or is it before she has finished

“The judge" said, Tenterden, C. J., in case 1, getting round, what I call the point? It seems to ought not to have left it as a question to the jury me that it applies from the time when, if there was whether the defendant intended to injure the plaintnothing in the way, a vessel begins to use her steer

iff, for every man must be presumed to intend the ing gear for the above purpose, and ends at the

natural and ordinary consequences of his own act." place where she would cease using her steering gear,

Aud Littledale, J., added: “If the tendency of the

publication was injurious to the plaintiff, then the law and would go straight on her course as before. will presume that the defendant, by publishing it, Therefore where the vessel is going against the tide, intended to produce tbe injury which it was calculait seems to me that the words before rounding'

ted to effect." mean before the vessel has finished rounding the

In case 2 Lord Ellenborough said, that it was a uni

versal principle that when a man is charged with doing point in the sense in which I have described the

an act, of which the probable consequence may be point — that is to say, that the rule applies, not only highly injurious, the intention is an inference of law before the vessel begins to round the point, but it resulting from the doing the act, and here it was al. applies during the whole time that she is rounding leged that he delivered the loaves for the use and supit."

ply of the children which could only mean for the

children to eat, for otherwise they would not be for Wait.— In the same case, Baggallay, L. J., said :

their use and supply. "What does · wait' mean? It does not mean to come In case 7, Shaw, C. J., said: “But the statute proto an actual standstill, but rather means to go as vides that the acts which it prohibits must be done slow as is consistent with safety.”

with an intention to give a preference. The intent to prefer is essential, but every person is to be presumed to intend the natural and probable cousequences of

his own acts, and if such acts do in fact as this do give THE PRESUMPTION OF INTENT,

a very large preference, it is competent for the jury to

infer the intent. It does not rebut this intent to show RULEI. Where a person does an act, he is presumed that the debtor has also another motive to the proin so doing to have intended that the natural (a) and ceeding, namely, an expectation of pecuniary or other legal (b) consequences of his act would result.(1)

future benefit to himself by means of further loans of

money, and being enabled thereby to continue his ILLUSTRATIONS.

business." (A.)

(B.) 1. W. wrote and published of H. that he had col- 1. A., B. and ('. sigu a note “as trustees” of a luded with an insolvent tenant in setting up a ficti

church, it being represented to them that no individtious distress. In an action of libel brought by H. ual liability could arise from their act. But the law against W. the judge left it to the jury to say whether considers a note so signed as binding the signers perW. intended to injure H. by the publication. This

sonally. The presumption is that A., B. and C. inwas error because the tendency of the libel being in

tended to bind themselves personally.19) jurious to H., W. was presumed to have intended it to 2. A. who holds two claims against B. gives him a be so.(2)

release under seal of and a simple receipt of pay2. A baker is charged with delivering adulterated ment of the other. The presumption is that A. inbread for the use of a public asylum. It is proved that

tended that the former should be conclusive and that A. delivered the bread. The presumption is that he

the latter should not.(10) intended it to be eaten.(3)

3. A debtor makes a fraudulent preference by as3. B. is charged with setting fire to a building with sigument of his property. He makes also a “conveyintent to injure the owner. It is proved that B. fired ance of his property for the benefit of crediters." The the building. The presumption arises that he intended

(5) Ecker v. McAllister, 45 Md. 290 (1876); Gardner v.Lewis, to injure the owner.(4)

7 Gall. 377 (1848). 4. A debtor knowing himself to be insolvent, exe

(6) Evans v. Evans, 41 Cal. 103 (1871); Astley v. Astley, 1 cutes a bill of sale and an assignment of his book ac

Hagg. Ecc. 720 (1828). (1) State v. Hessenkamp, 17 Iowa, 25 (1864): State v. Presell, (7) Chase v. Chase, 5 Gray, 157 (1856). 12 Ired. (L.) 105 (1851); Hayes v. State, 58 Ga. 47 (1877); Hos

(8) Denny v. Dana, 2 Cush. 160 (1848); Beals v. Clark, 13 kins v. State, 11 id. 92 (1852).

Gray, 18 (1859). (2) Haire v. Wilson, 9 B. & C. 643 (1829); King v. Harvey, 3 D. & R. 464 (1823),

(9) Mears v. Graham, 8 Blackf. 144 (1846); Burrit v. Dick(3) King v. Dixon, 3 M. & S. 12 (1814).

son, 8 Cal. 113 (1857). (4) R. v. Farrington, R. & R. 207 (1811).

(10) Jones v. Ricketts, 7 Md. 108 (1854).

law presumes that the intent of the conveyance was to frauà there should have been some person defrauded delay or defraud his creditors.(11)

or who might possibly have been defrauded. But I 4. A. forges the name of B. to a bill of exchange do not think that at all necessary. A man may have and negotiates it. The presumption is that A. in- an intent to defraud and yet there may not be any tended to defraud B., and his intention to pay it when person who could be defrauded by his act. Suppose a it became due is irrelevant.(12)

person with a good account at his bankers, and a 5. B. forges C.'s name to a check on the bauk of D. friend with his knowledge forges his name to a check C. has no account there. The presumption is that B. either to try his credit or to imitate his bandwriting, intended to defraud C.(13)

there would be no intent to defraud, though there 6. A. was employed by B. to purchase stock to a cer might be parties who might be defrauded; but where tain amount. A. gave B. a forged receipt for stock another person has no account at his bankers, but a for that amount. The presumption is that A. did this man supposes that he has, and on that supposition with the intention of defrauding B., and B.'s opinion forges his name, there would be an intent to dethat he did not intend to defraud is irrelevant.(14) fraud in that case, although no person could be de

7. C. was indicted for issuing a forged bank note frauded.” with intent to defraud the bank. The note was is- In case 10 it was eaid: “As men do not generally sued by C. to a third person, and it appeared that its violate the Criminal Code, the law presumes every execution was such as to render its spuriousness easily man innocent, and this presumption of innocence is to detectable by the officers of the bank who must ex- be observed by the jury in every case. But some men amine it before paying it; but this an ordinary per- do violate the law, and as they seldom do unlawful son would not discover. C. was presumed to have in- acts with innocent intentions, the law therefore pretended to defraud the bank. (15)

sumes every act in itself unlawful, to have been 8. A. sets fire to a building. The presumption is criminally intended until the contrary appears. A that he intended to destroy it.(16)

familiar example is on the trial of a case of homicide. 9. A. gives a promissory nute to B. The presump- Malice is presumed from the fact of killing, and the tion is that A. and B. intended that the note should burden of disproving the malice is thrown upon the be paid in legal currency.(17)

accused. The same principle pervades the law in civil 10. A statute provides that the failure to pay over as well as criminal actions. Indeed if this were not so money by a public officer shall be punishable; a public the administration of the criminal law would be pracofficer is indicted for failing to turn over a license fee tically defeated, as there is in most cases no other way collected by him. The presumption is that his fail- of sustaining the intent than by establishing the unure was willful and intentional.(18)

lawfulness of the act. In case 2 it was said: “When the law ascribes to one instrument a conclusive and to another a prima RULE II. Where an act is criminal per se a criminal facie character, we must presume that parties using intent is presumed from the commission of the act.(19) either intend it to operate according to its legal effect. A release will discharge a debt when a receipt will not.

ILLUSTRATIONS. Persons may settle in good faith under the impres

N. is proved to have been stabbed with a dirk knife sion that the amount paid is all that is due. But it by T., from which wound he instantly died. T. is sometimes happens that mistakes occur, and to enable presumed to have intended to kill N.(20) parties to correct them the law has declared that mere

2. S. shoots at C. who is on horseback. The ball receipts are not conclusive."

takes effect on C. and kills him. 8. testifies that he In case 3 Lord Chancellor Cairns said: “It is true

shot at C. intending only that his horse should throw that under this as under previous statutes of bank

him. The presumption is that 8. intended to kill ruptcy, two acts are specified which if done by the

C.(21) bankrupt are not only acts of bankruptcy, but are also,

In Com. v. Webster, (22) Chief Justice Shaw said: if followed by bankruptcy void. One is a conveyance

“The ordinary feelings, passions and propensities or assignment of the bankrupt's property for the bene

under wbich parties act are facts, kuown by observa. it of creditors, and the other is a conveyance or as

tion and experience; and they are so uniform in their sigoment fraudulent or by way of fraudulent prefer. operation that a conclusion may be safely drawn that ence. It is to be observed as to one of these acts, if a person acts in a particular manner he does so namely, a conveyance or assignment by way of fraudu under the influence of a particular motive. Indeed lent preference, special provisions have always been

this is the only mode in which a large class of crimes made in bankruptcy legislation, making such a con

can be proved, I mean crimes which consist not veyance or assignment void by express enactment, merely in an act done, but in the motive and intent and reducing it accordingly; and as to the other,

with which they are done. But this intent is a secret namely, a conveyance in trust for all creditors, it has of the heart which can only be directly known to the been held from the earliest times of bankruptcy law, searcher of all hearts; and if the accused makes no that as the effect of such a conveyance must be to de- declaration on the subject, and chooses to keep his lay or defeat creditors, the law will presume an inten- criminal, such criminal intent may be inferred and

own secret, which he is likely to do if his purposes are tion to delay or defeat creditors, and the conveyance would therefore be invalid as against, and perhaps often is safely inferred from his conduct and extereven without reference to the policy of the bank

nal acts." ruptcy laws."

Said Chief Justice Shaw in case 1: "A sane "The Recorder," said Maule, J., in case 5, “seems to

man, a voluntary agent, acting upon motives must be have thought that in order to prove an intent to de- presumed to contemplate and intend the necessary,

(19) People v. March, 6 Cal. 543 (1856); Murphy v. Com., 23 (11) Er parte Villars, L. R., 9 Ch. App. 443 (1874).

Grat. 960 (1873); McCone v. High, 24 Iowa, 336 (1868); Murphy (12) R. v. Hill, 2 Moody, 30 (1838).

v. State, 37 Ala. 142 (1861); Carroll v. State, 23 Ala. 28 (1863). (13) R. v. Nash, 2 Den. C. C. 498 (1852).

(20) Com. v. York, 9 Metc. 93 (1845); Murphy v. People, 37 (14) R. v. Sheppard, R. & R. 160 (1809).

nl. 447 (1865); Riggs v. State, 30 Mass. 636 (1856); State v. Ber(15) R. v. Mozágora, R. & R. 291 (1815).

trand, 3 Oregon, 61 (1868); State v, Holme, 54 Mo. 153 (1873); (16) People v. Orcutt, 1 Park. C. C. 252 (1851).

Conner v. State, 4 Yerg. 137 (1833). (17) Williams v. Boozeman, 18 La. Ann. 532 (1866).

(21) State v. Smith, 2 Strobh. 77 (1847). (18) State v. Heaton, 77 N. C. 504 (1877).

(22) 5 Cush. 316 (1850).

natural, and probable consequences of his own acts. or blow is sent directly or designedly to some vital If therefore one voluntarily or willfully does an act spot, we should infer that death was intended with which has a direct tendency to destroy anothers life, almost equal certainty, whether the perpetrator were the natural and necessary conclusion from the act is drunk or sober. So too when death is produced by that he intended so to destroy such person's life. So poison, and we see in the mode of its administration if the direct tendency of the willful act is to do another stealthy calculation, we would infer that death was in. some great bodily harm, and death in fact follows, as tended, whether he who administered the poison was a natural and probable consequence of the act, it is in a state of sobriety or intoxication, since in the very presumed that he intended such consequence, and be character of the act we could read design. must stand legally responsible for it. So where a dan. “But we also know that intoxication produces more gerous and deadly weapon is used, with violence, upon effect upon the nervous system of some than of others. the person of another, as this has a direct tendency to It clouds and obscures the judgment of one more than destroy life, or do some great bodily harm to the per- it does another. It produces greater extravagance of son assailed, the intention to take life or do him some exertion and action in some than it does in others, great bodily harm is a necessary conclusion from the and sometimes consequences result from such extravaact.” And to the same effect is the language of the gant exertion and action of wbich the party himself chief justice of Pennsylvania: “He who uses upon had no idea. All these things are to be considered the body of another at some vital part with a manifest by this jury when determining upon this question of intention to use it upon him, a deadly weapon, as an intent." axe, a gun, a knife or a pistol, must in the absence of

The rule that a man must be supposed to intend qualifying facts be presumed to know that his blow is the natural results of his act is said by Hubbard, J., to likely to kill; and knowing this must be presumed to be by no means an infallible proposition, though often intend the death which is the probable and ordinary treated as an axiom. “The result is not always eviconsequence of such an act.”(23)

dence of the suppo sed intent. When we look back In case 2 it was said: “If one were to fire a loaded

upon events that have happened we stand in a differgun into a crowd, or throw a piece of heavy timber

ent position, we behold with a clearer vision, as we from the top of a house into a street filled with people, embrace within our glance the beginning and the end, the law would infer malice from the wickedness of the the act and the consequence. But the man who is doact; so also the law will imply that the prisoner in

ing the act may contemplate a very different result. tended the natural and probable consequence of his own His feelings may be biassed by his wishes, and sanact, as in the case of shootiug a gun into a crowd, the guine feelings may be the cause of overlooking difficullaw will imply from the wantonness of the act, that he

ties which to a more quiet temperment might appear intended to kill some one, though it might bave been insurmountable. Disappointments also may take done in sport. If the prisoner's object had been noth- place which were not anticipated. (24) ing more than to make Carter's horse throw him, and

“It has been urged," said Comstock, J., in Curtis F. he had used such means only as were appropriate to Leavitt, (25) “ that the debtor corporation must be that end, then there would have been some reason for deemed to have intended the result of its own acts. applying to his case the distinctiou. *

* But in This is very often a useful rule of evidence in arriving this case the act indicated an intention to kill-it was

at a conclusion upon a question of motive and intencalculated to produce that effect and no other--death

tion, but it is not a rule of law. If a given result must, was the probable consequence and did result from by plain and absolute necessity, follow from a particu. it."

lar action, or if it be so likely to follow that no two "If a man raises his rifle and deliberately fires its con- minds of equal intelligence could differ in conclusion, tents into the bosom of another, or by a blow with an viewing the subject from the same point of observaaxe, which might fell an ox, buries it in the brain of

tion as the actor himself, then there would be no inanother, the inference from the act is irresistible that justice in holding that be intended such result. Still death was meant, and so the law presumes.

the question is one of fact; what was the intent? “The inferences of the mind, which are equally pre- And in Quinebang Bank v. Brewster, (26) Sanford, sumptions of law,are certain and conclusive in propor- J., said: “The intention of a party is a fact to be tion as the acts, from their nature and character, are proved as all other facts are proved, not indeed necescertain to result in death.

sarily by direct evidence, but either by direct eri“Thus the plunging of a poniard into the heart of dence or by the proof of other facts indicative of such another, we do not doubt, was intended to kill, but if

intention, and from which facts its actual existence aimed only at the arm or leg, though death may be and operation may be inferred. The law makes no the result, yet the mere fact of giving such a blow, so conclusive presumption in regard to it. Indeed the long as that is the only criterion by which we judge, law never conclusively presumes that a person inteuded renders the intent more doubtful and the inference

to violate the law or commit a fraud. The act done lcss strong. So if one beat a full-grown man with his

and the circumstances attending its commission may fist, and death ensues, we wouid ordinarily feel far

indicate more or less clearly the intention of the party more doubt that death was intended than if it had

doing it, and authorize an inference of more or less been produced by the use of a dangerous weapon. So weight in regard to such intention.” tvo regard may be had to the relative strength and powers of endurance of the parties, as well as to the

RULE III. But when a specific intent is required to mode in which the violence is applied.

make an act an offense, the doing of the act does not “A powerful blow given by the fist alone (but not re

raise a presumption that it was done with the specific inpeated) upon the head of a full-grown man would not

tent. ordinarily be regarded as intended to produce death;

ILLUSTRATIONS. but what else could be inferred if the same blow were planted upon the temple of an infaut child ?

1. R. is charged with assaulting with intent to mur“In many cases the inference that death is intended der one E. It is proved that R. fired a loaded pistol at is as strong when the act is perpetrated by a drunken as when perpetrated by a sober man. Thus if by a (24) Jones v. Howland, 8 Meto. 306 (1844). deadly weapon, as by a rifle or a bowie-knife, a bullet

(25) 15 N. Y. 1 (1857). (23) Agnew, C. J., in Com. y. Drum, 58 Penu, St. 17 (1868). (26) 30 Conn. 559 (1862).

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E. There is no presumption that R. intended to mur- principle analogous to that which applies to visible deder E.(27)

fects in the sale of personal chattels by parol."' 2. A statute makes a willful, deliberate and pre- In case 2 it was said: “The defendant's counsel meditated killing, murder in the first degree. B. kills seem to suppose that there could have been no intenC. There is no presumption that the killing was de- tion to except the right to maintain the ditch from liberate and premeditated.(28)

the deed, because the parties said nothing about it. In case lit was said: “The general rule is well set- But courts will often find decisions and judgments tled, to which there are few if any exceptions, that upon the presumed intention of the parties where when a statute makes an offense to consist of an act nothing has been said. A man is presumed to intend combined with a particular intent, that intent is just the natural and probable consequence of what he does; as necessary to be proved as the act itself and must be and on this principle many persons have been found found by the jury, as matter of fact, before a convic- guilty of the highest crimes. A man is presumed to tion can be had. Bu: especially when the offense accept of a conveyance of property made to him, on the created by the statute, consisting of the act and the ground that it being for his benefit he would naturally intent, constitutes as in the present case, substantially wish to receive it; and on this principle titles have an attempt to commit some higher offense than that been established. Indeed we always draw inferences which the defendant has succeeded in accomplishing from our observation of the usual babits of men which by it, we are aware of no well founded exceptions to lead to a great variety of presumptions. These inthe rule above stated, and in all such cases the particu- ferences are the conclusions drawn by reason aud lar intent must be proved to the satisfaction of the common sense from premises established by proof; and jury: and no intent in law or mere legal presumption, are as applicable to questions of intention where the differing from the intent in fact can be allowed to sup- intention of parties becomes important as to any other ply the place of the latter."

disputable fact. It is true, as remarked by Judge

Story, that if the proofs are doubtful and unsatisfacRULE IV. The law presumes an intent from acts in tory, and the mistake is not made entirely plain, the absence of declarations (a) where the party is physi- equity will withhold relief on the ground that the cally and mentally capable of forming an intent.(b) written paper ought to be treated as a full and correct ILLUSTRATIONS.

expression of the intent, until the contrary is estab

lished beyond reasonable controversy. But this does (A.)

not mean that there must always exist direct and posi1. The question was whether a certain incumbrance tive proof that the instrument does not express the was intended to be excepted from a covenant against true intent of the parties in order to justify the court incumbrances in a deed. It appeared that the incum- in reforming it. To give any such construction to the brance in question was notorious and of long standing, rule would be to deny any right in a court of equity to and no mention of it was made in the deed. The pre- interfere unless the instrument could be shown to vary sumption was that it was intended to be excepted. (29) from written memoranda of the terms of the contract

2. In case 1 it appeared that nothing was said by the from which it is drawn up, or some evidence equally parties in reference to the incumbrance. The pre- decisive. We do not so understand the rule.” sumption of an intention to except it is raised from

(B.) these acts above.(30)

1. A. is indicted for burglary. It is proved that A. In case 1 it was said: “From the existence and broke and entered a store in the night-time. The prenotoriety of the incumbrance, its long standing and sumption is that A. intended to commit a burglary. the long acquaintance of the parties with it as a per- A. shows that he was at the time too drunk to have manent thing, the fact that no mention was made of it entertained such an intent. The presumption of inin the negotiation, though other incumbrances were

tent no longer arises.(31) meutioned in the deed and excepted, the committee

2. R. is indicted for shooting at S. with intent to drew the inference that it was the intention of the kill him. R. shot at S. while in a state c' intoxicaparties that it should be excepted from the deed.

tion. The guilt of R. turns on the question whether * * The argument in favor of the finding of the R. was in such a state of mind as to be able to form an committee is very strong. An express warranty on intent.(32) the sale of personal chattels does not apply to visible

In case 2, Coleridge, J., said: “There are two points defects, because the fact that the defect was plainly for your consideration, first, as to the act; second, as visible is evidence that the purchaser knew it, and did to the intent. With regard to the latter, the alleganot take his warranty on account of it. This princi- tion respecting it in the indictment must, no doubt, ple does not apply in the case of a warranty by deed, be proved to your satisfaction before you can find the because the terms of a deed cannot be contradicted or prisoner guilty upon the full charge. The inquiry as varied by parol, and undoubtedly a man may, if he to intent is far less simple than that as to whether an will be so foolhardy, make an express warranty in a act has been committed, because you cannot look into deed, where he knows that it is broken at the moment a man's mind to see what was passing there at any the deed is delivered, and knows also that the fact is given time. What he intends can only be judged of well known to the party to whom he gives it. But or

by what he does or says, and if he says nothing then dinarily we suppose that parties do not in this open his acts alone must guide you to your decision. It is a way intentionally involve themselves in lawsuits. general rule in criminal law, and one founded on comAnd we do not see why the plain, open visible, and

mon sense, that jurios are to presume a man to do notorious character of this incumbrance, connected as

what is the natural consequence of his act. The conit was with full knowledge of the parties of its exis

sequence is sometimes so apparent as to leave no tence, does not furnish evidence that it was not in

doubt of the intention. A man could not put a pistol tended by the parties to be warranted against upon a

(31) Ingalls v. State, 48 Wis. 647 (1879); Wood v. State, 34 (27) Roberts v. People, 19 Mich. 401 (1870); Mayher v. Peo- Ark. 341 (1879); Roberts v. People, 19 Mich. 401 (1870); State v. ple, 10 id. 212 (1862).

Bell, 29 Iowa. 316 (1870); State v. Maxwell, 42 id. 208 (1875); (28) Com, v. Dunn, 58 Penn. St. 9 (1876); State v. Mitchell, Wenz v. State, 1 Tox. App., 36 (1876); Loza v. State, id, 64 Mo. 191 (1876); State v. Foster, 61 id. 549 (1876); State v. 488 (1877); U. S. v. Bowen, 4 Cranch C. C. 604 (1835); Lane, 64 id. 319 (1876); Hamby v. State, 36 Tex. 523 (1872). State v. Coleman, 27 La. Ann. 691 (1875); State v. Trivas, 32 id. (29) Knapp v, White, 23 Conn, 529 (1855).

1086; 36 Am. Rep. 293 (1880). (30) Id.

(32) R. v. Monkhouse, 4 Cox, 55.

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