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118

PRESUMPTIONS FOUNDED ON COURSE OF BUSINESS.

all the rent previously accrued (c). But the mere delivery of money by one to another, or of a bank cheque, or the transfer of stock, unexplained, is presumptive evidence of the payment of an antecedent debt, and not of a loan (d). The same presumption arises upon the payment of an order or a draft for money, namely, that it was drawn upon funds of the drawer, in the hands of the drawee. But in the case of an order for the delivery of goods, it is otherwise, they being presumed to have been sold by the drawee to the drawer (e).

§ 117. Under this head of presumptions from the course of trade, may be ranked the presumptions frequently made from the regular course of business in a public office. Thus, postmarks on letters are primâ facie evidence that the letters were in the post-office at the time and place therein specified (ƒ); and if a letter properly directed (g) is sent by the post, it is presumed, from the known course in that department of the public service, that it reached its destination at the regular time, and was received by the person to whom it was addressed (h). This last presumption is, in several cases, rendered conclusive by the legislature. Thus, under the Companies' Clauses, the Lands' Clauses, and the Railway Clauses Consolidation acts, summonses, notices, writs, and other proceedings, may be served upon the respective companies or promoters subject to these acts, by being transmitted through the post directed to their principal offices (i); and a like service of notices by the company upon the shareholders will, under the first

(c) 1 Gilb. Evid. (by Lofft), 309; Brewer v. Knapp, 1 Pick. 337.

(d) Welch v. Seaborn, 1 Stark. R. 474; Breton v. Cope, Pea. R. 30; Lloyd v. Sandiland, Gow, R. 13, 16; Cary v. Gerrish, 4 Esp. 9; Aubert v. Walsh, 4 Taunt. 293; Boswell v. Smith, 6 C. & P. 60 ; Patton v. Ash, 7 Serg. & R. 116, 125. (e) Alvord v. Baker, 9 Wend. 323, 324.

(f) Fletcher v. Braddyll, 3 Stark. R. 64; R. v. Johnson, 7 East, 65; R. v. Watson, 1 Camp. 215; R. v. Plumer, R. & R. 264.

(g) Where the address was "Mr. Haynes, Bristol," held insufficient to raise this presumption, Walter v. Haynes, R. & Moo. 149, per Abbott, C. J.

(h) Saunderson v. Judge, 2 H. Bl. 509; Bussard v. Levering, 6 Wheat. 102; Lindenberger v. Beal, ib. 104; Warren v. Warren, C. M. & R. 250; Kufh v. Weston, 3 Esp. 54; Dobree v. Eastwood, 3 C. & P. 250; Story on Bills, § 300. Woodcock p (i) 8 & 9 Vict., c. 16, § 135; c. 18, § 134; c. 20, § 138.

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named act, be in general deemed sufficient (j). Somewhat similar clauses are inserted in a variety of other statutes (k). Again, at common law, the time of clearance of a vessel, sailing under a license, has been presumed to have been indorsed upon the license, which was lost, upon its being shown, that without such indorsement, the custom-house would not have permitted the goods to be entered (1). So, on proof that goods, which cannot be exported without license, were entered at the custom-house for exportation, it will be presumed that there was a license to export them (m).

§ 118. The like presumption is also sometimes drawn from the usual course of men's private offices and business, where the primary evidence of the fact is wanting (n). Thus, the underwriters upon a foreign ship or a foreign voyage, are presumed to know the usages and laws of foreign states, which affect that ship or that voyage, because such knowledge is necessary for the due conduct of the business (o). So, an underwriter is presumed to know the contents of Lloyd's Shipping List, because this is a document, to which, in the ordinary course of his business, he has access; but this last presumption is strictly confined to cases where the assured has made no representation inconsistent with the list, which is calculated to mislead the underwriter (p). It seems to have been held at Nisi Prius, though it is difficult to understand upon what principle, that, in the absence of proof, partners must be presumed to be interested in equal proportions in the partnership property (g).

§ 119. We may here mention one or two presumptions which

(j) 8 & 9 Vict., c. 16, § 136.

(*) See 7 & 8 Vict., c. 33, § 6; 8 & 9 Vict., c. 100, § 108; 7 & 8 Vict., c. 101, § 72; 10 & 11 Vict., c. 32, § 60; 6 & 7 Vict., c. 18, § 100.

(1) Butler v. Allnutt, Stark. R. 222.

(m) Van Omeron v. Dowick, 2 Camp. 44.

(n) Doe v. Turford, 3 B. & Ad. 890, 895; Champneys v. Peck, 1 Stark. R. 404; Pritt v. Fairclough, 3 Camp. 305.

(0) Young v. Turing, 2 M. & Gr. 603, per Lord Abinger; 2 Scott, N. R. 752, S. C.; Noble v. Kennoway, 2 Doug. 513, per Lord Mansfield.

(p) Mackintosh v. Marshall, 11 M. & W. 116.

(2) Farrar v. Beswick, 1 M. & Rob. 527, per Parke, B.

120 PRESUMPTIONS RELATING TO CARRIERS, INNKEEPERS, &c.

attach to particular trades, and which, though apparently harsh, are in reality founded on just principles of public policy (n). For instance, if goods intrusted to a common carrier be lost or damaged, the law will conclusively presume that the carrier has been guilty of negligence, unless he can show that the loss or damage was occasioned by the act of God, or by the Queen's enemies (o). So, the loss or damage of luggage, while under the custody of a stagecoachman, a cabman, or even a gratuitous bailee, will raise a primâ facie inference of want of care, which, in the absence of evidence to the contrary, will render the bailee liable to an action (p). So, when chattels have been deposited in a public inn, and there lost or injured, the primâ facie presumption is that the loss or injury was occasioned by the negligence of the innkeeper or his servants (q).

§ 120. With respect to the boundaries of property, there are some presumptions which may conveniently here be noticed. Thus, the law presumes that the soil of unnavigable rivers, usque ad medium filum aquæ, together with the right of fishing, belongs to the owner of the adjacent land (r); while in navigable rivers and arms of the sea, the soil, primâ facie, is vested in the crown, and the fishery is public (s). Similar presumptions are recognised in respect of land lying on the seashore; that which is covered with the ordinary high water being presumed to belong either to the crown or to the lord of the manor, while, as to the ownership of that which is overflowed only at spring tide, the presumption is

(n) Best on Pres. 244, 245.

(0) Ross v. Hill, 2 Com. B. 890, per Tindal, C. J.; Coggs v. Bernard, 2 Lord Raym. 918, per Lord Holt.

(p) Ross v. Hill, 2 Com. B. 877; Harris v. Costar, 1 C. & P. 637; Coggs v. Bernard, 2 Lord Raym. 909.

(2) Dawson v. Chamney, 5 Q. B. 164; Richmond v. Smith, 8 B. & C. 9; Calye's case, 8 Rep. 32 (a).

(r) Carter v. Murcot, 4 Burr. 2163. Semble that the owner of a several fishery, when the terms of the grant are unknown, is presumed to be the owner of the soil, Somerset (Duke) v. Fogwell, 5 B. & C. 875; 1 D. & R. 747, S. C.; Parthericke v. Mason, 2 Chit. 658; Anon. Lofft. 364. Where two parishes are separated by a river, the medium filum aquæ is the presumptive boundary between them, R. v. Landulph, 1 M. & Rob. 393, per Patteson, J.

(s) Carter v. Murcot, 4 Burr. 2163.

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in favour of the adjoining proprietor (t). So, waste land on the sides, and the soil to the middle of a highway, are presumed to belong to the owner of the adjoining inclosed land, whether he be a freeholder, leaseholder, or copyholder (u). This rule, being founded on a supposition that the proprietor of the adjoining land, at some former period, gave up to the public for passage, all the land between his inclosure and the middle of the road (v), is liable to be rebutted by showing that the road was originally dedicated by some other party (w); the presumption may also be repelled by proof that the lord of the manor has exercised acts of ownership, either over the spot in dispute, or over other waste land in immediate connection with it (r). As to roads set out under the first general Inclosure Act, "the herbage and grass arising therefrom" are conclusively presumed to belong to the proprietors of the adjoining lands (y), and as to those made under the later Act of William the Fourth, the commissioners are directed to award "the grass and herbage growing and renewing upon" them, to such persons as in their judgment are best entitled to the same (~). But both Acts are silent respecting the ownership of the soil, and, it seems, that as to that, no legal presumption can arise in favour of the proprietors of the neighbouring allotments (a). Where fields belonging to different owners are separated by a hedge and ditch, the hedge, primâ facie, belongs to the owner of the field in which the ditch is not; but if there are two ditches, one on each side, the ownership of the hedge must depend upon evidence of acts of ownership (b). The common user of a wall, separating

(t) Lowe v. Govett, 3 B. & Ad. 863; Blundell v. Catterall, 5 B. & A. 291, 298, per Holroyd, J.; 304, per Bayley, J.

(u) Doe v. Pearsey, 7 B. & C. 304; 9 D. & R. 908; Steel v. Prickett, 2 Stark. R. 463, per Abbott, C. J.; Cooke v. Green, 11 Price, 736; Scoones v. Morrell, 1 Beav. 251. (v) Doe v. Pearsey, 7 B. & C. 306, per Bayley, J.

(w) Headlam v. Hedley, Holt, N.P.R., per Bayley, J.

(x) Doe v. Kemp, 2 Bing. N. C. 102; 2 Scott, 9, S. C.; Grose v. West, 7 Taunt. Anon. Lofft. 358; Doe v. Kemp, 7 Bing. 332; 5 M. & P. 173, S.C. (≈) 6 & 7 Will. 4, c. 115, § 29.

39;
(y) 41 Geo. 3, c. 109, § 11.

(a) R. v. Hatfield, 4 A. & E. 164, per Lord Denman; R. v. Edmonton, 1 M. & Rob. 32, per Lord Tenterden.

(b) Guy v. West, 2 Sel. N. P. 1324, per Bayley, J. In France, boundary hedges and the trees in them are declared to be common property, " mitoyens," except in certain cases, Code Civil, Art. 670, 673.

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PRESUMPTIONS RESPECTING INFANTS.

lands or houses which belong to different proprietors, is primà facie evidence that the wall, and the land on which it stands, belong to them in equal moieties as tenants in common (c). But this presumption may be rebutted by showing that the wall, in fact, stands on land, parts of which were separately contributed by each proprietor (d). Where a tree grows on the boundary of two fields, so that the roots extend into the soil of each, the property in the tree is presumed to belong to the owner of that land in which it was first sown or planted (e). In the learned work of Mr. Callis on Sewers (f), a distinction has been taken between a bank and a wall; the former, being made of earth taken from the adjacent soil, is presumed to belong to the party whose land adjoins thereto; the latter, being built of materials brought from a distance, is, primâ facie, the property of the person who is bound to repair it. This distinction has been recognised as sound law in the Court of Common Pleas (g).

§ 121. Other disputable presumptions arise in respect of infants. Thus, during the interval between seven years and fourteen, infants are, primâ facie, presumed to be unacquainted with guilt, and therefore cannot be convicted, unless the jury shall be satisfied from the evidence that, at the time when the offence was committed, they had a guilty knowledge that they were doing wrong (h). This rule, though perhaps originally adopted, in favorem vitæ, with respect to capital offences only (i), has, of late years, been expressly held applicable to all felonies (k); and there seems no reason why, on principle, it should not also be extended to misdemeanors, with the exception, perhaps, of those cases where an infant occupier of lands, charged with the repair of a bridge or road, might be held liable to an indictment for non-repair (1). The test

(c) Cubitt v. Porter, 8 B & C. 257; 2 M. & R. 267, S. C.; Wiltshire v. Sidford, 1 M. & R. 404; 8 B. & C. 259, note.

(d) Matts v. Hawkins, 5 Taunt. 20; Murly v. M'Dermott, 8 A. & E. 138; 3 N. & P. 256, S. C.

(e) Holder v. Coates, M. & M. 112, per Littledale, J.; Masters v. Pollie, Roll. R. 141; contrà, Waterman v. Soper, 1 Lord Raym. 737; Anon. 2 Roll. R. 255. (f) P. 74, 4th Ed.

(9) Newcastle (Duke) v. Clark, 8 Taunt. 627, 628, per Park, J.

(h) 1 Russ. C. & M. 1—5.

(k) R. v. Owen, 4 C. & P. 236.

(i) 1 Hale, c. 3.

(1) R. v. Sutton, 3 A. & E. 597, 612.

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