PRESUMPTIONS RESPECTING INFANTS AND WIVES.

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of juvenile exemption propounded by Lord Hale, is whether the accused was capable of discerning "between good and evil” (m); words sufficiently indefinite, since they may either apply to legal responsibility or to moral guilt (n); and many children of tender years, though perfectly well aware that it is wrong to take what does not belong to them, and who are consequently, according to this test, fit subjects for punishment, may yet be only partially acquainted with the sinful nature of theft, and be wholly ignorant that it is a crime against the law of the land. It seems, therefore, to be a law savouring of harshness which permits a child, under such circumstances, to suffer the same punishment as it inflicts upon a grown person. Indeed, the loose and unsatisfactory manner in which this merciful presumption of infantine innocence is practically rebutted, cannot be more clearly exposed than by referring to one of the latest statistical returns of juvenile delinquents, by which it appears that, out of 297 children under the age of fifteen, committed in the metropolis alone during the year 1841, 238 have been actually convicted; and of these no less than 36 have been transported (o). If in all these cases malitia supplevit ætatem, no one will dispute but that malice has had much to supply.

§ 122. With respect to married women, also, the law recognises certain presumptions. Thus, if a wife commit a felony (p) other than treason or homicide, or, perhaps, highway robbery, in

(m) 1 Hale, 27.

(n) See 30 Law Mag. p. 24, and article on M'Naughten's trial in Leg. Obs. for May 27, 1843, as to the dangerous and unphilosophical nature of this test.

(0) Porter's Statistical Tables, part 14, pp. 149, 151, 152, 153. In 1844, 1596 children, under the age of fifteen, were committed for trial in England and Wales. Porter's Progress of Nation, p. 656.

(p) There may be some doubt as to the crimes exempted from this presumption. "Thus Lord Hale, in one part of his Pleas of the Crown, vol. i., pp. 45, 47, asserts that the presumption is recognised in all cases excepting treason and murder; but in later passages, id. p. 434, 516, he excludes from its operation manslaughter also, and cites as his authority a passage from Dalton, in which manslaughter is not mentioned, Dalt. c. 104, p. 267; new ed. c. 157, p. 503. Mr. Serjt. Hawkins makes the exceptions consist of treason, murder, and robbery, 1 Hawk. c. 1, p. 4, while Mr. Justice Blackstone, in the 1st vol. of his Commentaries mentions only treason and murder, c. 15; and in the 4th vol. c. 2, excepts also crimes that are mala in se, and prohibited by the law of nature, as murder and the like. * * We would gladly see the exception extended to all

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COERCION OF MARRIED WOMEN.

company with her husband (p), the law presumes that she acted under his coercion, and, consequently, without any guilty intent, unless the fact of non-coercion be distinctly proved. This presumption appears, on some occasions, to have been considered conclusive, and is still practically regarded in no very different light, especially when the crime is of a flagrant character (q); but the better opinion seems to be, that, in every case, the presumption may now be rebutted by positive proof that the woman acted as a free agent (~); and in one case that was much discussed (s), the Irish judges appear to have considered that such positive proof was not required, but that the question was always one to be determined by the jury under the circumstances proved. Whether the doctrine of coercion extends to any misdemeanors may admit of some doubt, but the better opinion seems to be, that, provided the misdemeanor be of a serious nature, as, for instance, the uttering of base coin (t), the wife will be protected in like manner as in cases of felony, although it has been distinctly held that the protection does not extend to assaults and batteries (u), or to the offence of keeping a brothel (v). Indeed, it is probable that in all inferior misdemeanors, this presumption, if admitted at all, would be held liable to be defeated, by far less stringent evidence of the wife's active co-operation than would suffice in cases of felony (w).

§ 123. Other presumptions are founded on the experienced con

capital felonies, if not to all crimes punishable with transportation, and thus abolish a rule of law, which was originally founded on doctrines that no longer prevail, and which every married man knows is often diametrically opposed to the fact."-30 Law Mag. pp. 9, 11.

(p) In R. v. Stapleton, 1 Jebb, C. C. 93, the majority of the judges appeared to think that this presumption did not apply to cases of highway robbery. (2) 1 Hale, 45; R. v. Archer, 1 Moo. C. C. 143.

(r) See 7 Rep. of Cri. Law Com. p. 21; 30 Law Mag. p. 9—12; R. v. Hughes, 2 Lew. C. C. 229; 1 Russ. C. & M. 22., S. C; R. v. Pollard, 8 C. & P. 553, per

Tindal, C. J., and Vaughan, J., in a case of arson where the husband was bedridden. See also R. v. Smith, Ir. Cir. R. 459.

(s) R. v. Stapleton, 1 Jebb, C. C. 93.

(t) R. v. Conolly, 2 Lew. C. C. 229, per Bayley, J.; R. v. Price, 8 C. & P. 19 ; Anon. Ir. Cir. R. 374.

(u) R. v. Cruse, 8 C. & P. 541 ; 2 Moo. C. C. 53, S. C.; R. v. Ingram, 1 Salk. 384. (v) R. v. Williams, 10 Mod. 63; 4 Bl. Com. 29.

(w) R. v. Cruse, 8 C. & P. 541; 2 Moo. C. C. 53, S. C.

PRESUMPTIONS IN FAVOUR OF IMMUTABILITY.

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tinuance, or immutability, for a longer or shorter period, of human affairs. When, therefore, the existence of a person, or personal relation, or a state of things, is once established by proof, the law presumes that the person, relation, or state of things continues to exist as before, till the contrary is shown, or till a different presumption is raised, from the nature of the subject in question. Thus, where a jury found that a certain custom existed up to the year 1689, the court held, that in the absence of all evidence of its abolition, this was in legal effect a verdict finding that the custom still subsisted at the time of the trial in 1840 (x). So, in settlement cases, the court will presume that a son, though long since arrived at manhood, has continued unemancipated, as in the days of his infancy, unless there be some evidence to rebut this presumption, as, for instance, if proof be given that he has separated from his family (y). So, in the absence of evidence to the contrary, the settlement of a pauper (2), or the appointment of a party to an official situation (a) will, at least for a reasonable time, be presumed to continue in force. So, a partnership, tenancy, or other similar relation, once shown to exist, is presumed to continue, till it is proved to have been dissolved; and therefore, where a partnership was admitted to have been in existence in 1816, it was, in the absence of all evidence to the contrary, presumed to be still continuing in 1838 (6). So, where a tenant holds over after the expiration of the term, he impliedly holds subject to all the covenants in the lease which are applicable to his new situation, and this presumption still prevails, though the rent has been advanced (c), and though the original lessor has assigned his interest to a third party, or being a clergyman, has resigned his living, and a fresh incumbent has succeeded him (d). The opinions, also, of individuals, once entertained and expressed, and their state of mind, once proved to

(z) Scales v. Key, 11 A. & E. 819.

(y) R. v. Lilleshall, 7 Q. B. 158, explaining R. v. Oulton, 5 B. & Ad. 958; 3 N. & M. 62, S. C.

(2) R. v. Tanner, 1 Esp. 306, per Ashurst, J.

(a) R. v. Budd, 5 Esp. 230, per Lord Ellenborough.

(b) Clark v. Alexander, 8 Scott, N. R. 161. See also Alderson v. Clay, 1 Stark. R. 405.

(c) Digby v. Atkinson, 4 Camp. 275, per Lord Ellenborough.

(d) Hutton v. Warren, 1 M. & W. 466.

126

PRESUMPTIONS AS TO CONTINUANCE OF LIFE.

exist, are presumed to remain unchanged, till the contrary appears. Thus, all the members of a Christian community being presumed to entertain the common faith, no man is supposed to disbelieve the existence and moral government of God, till it is shown from his own declarations. In like manner, every man is presumed to be of sane mind, till the contrary is shown; but if derangement or imbecility is proved or admitted at any particular period, it is presumed to continue, till disproved (e), unless it be obviously of a partial or temporary character (ƒ).

§ 124. So, where a person is once shown to have been living, the law, in the absence of proof that he has not been heard of within the last seven years, will presume that he is still alive; unless after a lapse of time considerably exceeding the ordinary duration of human life. In the civil law the legal presumption of life ceases at the expiration of one hundred years from the date of the birth (g), and the same rule appears to have been adopted in Scotland (h), but in England, no definite period has been conclusively fixed, during which the presumption is allowed to prevail. In several old cases, where feoffments for terms varying from ninety-nine to eighty years have been made to particular tenants, the possibility of their surviving the expiration of the terms has been neglected in determining the nature of the remainders (i); and the book of a tithecollector, written seventy-four years before, has been admitted in evidence, without proof that any inquiries had been made for the writer (k). But where the term was for sixty years only, the court

(e) Att.-Gen. v. Parnther, 3 Bro. Ch. Ca. 443; Blake v. Johnson, Milw. Eccl. Ir. R. temp. Radcliff, 164-166.

(f) Walcot v. Alleyn, Milw. Eccl. Ir. R. temp. Radcliff, 69; Legeyt v. O'Brien, id. 334—337; Airey v. Hill, 2 Add. 209; White v. Wilson, 13 Ves. 87; Hall v. Warren, 9 Ves. 605, 611.

(g) Vivere etiam usque ad centum annos quilibet præsumitur, nisi probetur mortuus. Corpus Juris Glossatum, tom. 2, p. 718, note (7); 1 Mascard. de Prob. Concl. 103, note 5; Campegius Tract. de Test. reg. 350.

(h) Morison, Presump. xvi. Carstairs v. Stewart, 1734; Hubback, Ev. of Suc. 168. For other foreign laws on same subject, see Hubback, Ev. of Suc. 758, 759. (i) Weale v. Lower, Pollex. 67, per Lord Hale; Napper v. Sanders, Hutt. 119; Lord Derby's case, Lit. Rep. 370.

(k) Jones v. Waller, 1 Price, 229. See also Doe v. Davies, 16 L. J. (N.S.) Q. B. 218, 222.

PRESUMPTIONS AS TO CONTINUANCE OF LIFE.

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took into consideration the possibility of the termor living after its expiration (1), and the deposition of a witness taken sixty years before the trial has been rejected, no search having been made for the party, and no account being given of him (m). In an action of ejectment, where the lessor of the plaintiff, to prove his title, put in a settlement 130 years old, by which it appeared that the party through whom he claimed had four elder brothers, the jury were allowed to presume, not only that these persons were dead, but, in the absence of all evidence to the contrary, that they had died unmarried and without issue (n).

§ 125. Although the presumption of life will continue for a period exceeding sixty years, if no inquiry has been made for the party, whose death is relied upon, this presumption will be bounded within far shorter limits, if proof be given of his continuous unexplained absence from home, and of the non-receipt of intelligence concerning him. In such case, after the lapse of seven years, the presumption of life ceases, and the burden of proof is devolved on the other party (0). This period was inserted, upon great deliberation, in the statutes respecting bigamy (p), and the statute concerning leases for lives (q), and has since been adopted from

(1) Beverley v. Beverley, 2 Vern. 131.

(m) Benson v. Olive, 2 Str. 920; Manby v. Curtis, 1 Price, 225.

(n) Doe v. Deakin, 3 C. & P. 402; 8 B. & C. 22, S. C., by name of Doe v. Wolley. There, Bayley, J., in stating that the jury had properly made this presumption, relied on the general rule, that things must be presumed to remain in the same state, in which they are proved to have once been, unless there is some evidence of a subsequent alteration, 3 C. & P. 406; but it is submitted that the rule was in this case strained somewhat beyond its legitimate extent; for if presumptions are founded, as they should be, on the experienced course of events, it was surely more probable that one out of four brothers should marry and have children, than that they should all die unmarried. In Doe v. Griffin, 15 East, 293, where a similar question arose, evidence negativing the marriage of the party, who was presumed to have died without issue, was given; and in Richards v. Richards, id. 294, note a, where the lessor of the plaintiff claimed as heir by descent, and proved the death of his elder brothers, the court held that he must further show that they died without issue, since in ejectment no presumption could be admitted against the person in possession.

(0) Hopewell v. De Pinna, 2 Camp. 113; Rust v. Baker, 8 Sim. 443; Loring v. Steineman, 1 Metc. 204.

(p) 1 Jac. 1, c. 11, § 2; 9 Geo. 4, c. 31, § 22.

(7) 19 Car. 2, c. 6, § 2.