in the defence (where defendant has given the notice), before which time there can be no cross-examination on the contents. Graham v. Dyster, 2 Stark. N. P. 23, 1816; but this rule is not strictly enforced. T. 8. 1817.

Stamps] See that title. The presumption is that a lost document is properly stamped: Crisp v. Anderson, 1 Stark. N. P. 35, 1815; Closmadeuc v. Carrel, 18 O. B. 36, 1856, against a party refusing, on notice to produce: but it may be proved that it was not, and so kept out. See Garnons v. Swift, 1 Taunt. 507, 1809.

Privileged documents] See p. 183, and foll.

Physical inconvenience] The nature of the obstacles which render it impossible, or highly inconvenient, to produce a document, on physical grounds, must be proved in the usual way. This being done to the satisfaction of the court, secondary evidence of the contents will be admitted. Thus, where the question was, what were the devices and inscriptions on certain banners carried at a public meeting, it was held that parol evidence of the inscriptions was admissible: Hunt, 1820. So the inscriptions on a monument may be proved by parol: Doe v. Cole, 6 C. & P. 359, 1834. But where a notice was suspended by a nail to the wall of an office, it was held that it must be produced: Jones v. Tarleton, 9 M. & W. 675, 1842. Secondary evidence may be given of an original which is in a foreign country and cannot by law be removed: Alivon v. Furnival, 1 C. M. & R. 277; 4 Tyrw. 75, 1834. Cf. Boyle v. Wiseman.

Public documents] For 'public documents,' see T. s. 1479, and Phips. 316; as in all other cases, the person who seeks to give secondary evidence of the document must satisfy the court that the document is of a 'public' nature. Many documents of this kind will be found mentioned under Documentary Evidence. It is to be observed, that there is here this peculiarity, that a particular kind of evidence is required by the law to be substituted for the original, and no other evidence of contents of public documents is admissible, e.g., in probate. But see below.

Duty of judge] The preliminary question of fact on which the admissibility of the evidence depends, is for the judge, not the jury. And in order to decide this question, he 'must do everything that is necessary, including the determining a question of fact. When in a trial (libel) a question arose whether a letter produced was or not the original of which a witness was giving secondary evidence, it was held that the judge was wrong in not deciding the question at once, and a new trial was granted: Boyle v. Wiseman.

Degrees of secondary evidence] There are no degrees of secondary evidence: Doe d. Gilbert v. Ross, 7 M. & W. 102, 1840; Hall v. Ball, 3 M. & Gr. 242, 1841. In Brown v. Woodman, 6 C. & P. 206, 1834, it was held that a defendant might give parol evidence of the contents of a letter, of which he had kept a copy, and that he was not bound to produce the copy. But if one has better secondary evidence than he produces, the jury may infer that it would have been adverse to him: per L. Abinger, Doe v. Ross. So where two parts of an agreement were prepared but one only was stamped, which was in the custody of

defendant, who, on notice, refused to produce it, the court ruled that plaintiff might give a draft in evidence without putting in the part of the agreement which was unstamped. Garnons v. Swift, 1 Taunt. 507, 1809. Cf. Waldy v. Gray, L. R. 20 Eq. 250, 1875.

Even in the case of public documents, if good reason can be shown why neither the original nor the proper substituted evidence can be produced, secondary evidence of the ordinary kind will be admissible. Thurston v. Slatford, 1 Salk. 284, 1700; M'Dougall v. Gowry, Ry. & M. 392, 1826; Anon., 1 Vent. 257, 1675.

It is hardly necessary to say that, even if secondary evidence be admissible, a copy of a document is, in itself, no evidence of the contents of the original; and it can only become so when verified by the oath of a witness: Fisher v. Samuda, 1 Campb. 190, 1808. Still less is a copy of a copy any evidence of the contents of the original. Where a declaration had been taken down from the lips of a dying man, but not signed by him, and the writer had himself made a copy, the court declined to let him swear this was a true copy, regarding the former as the original. Reason (Str. at 500), 1722; Everingham v. Roundell, 2 Moo. & Rob. 138, 1838; Liebman v. Pooley, 1 Stark. N. P. 167, 1816. But it might become so, if, in addition to being itself verified, the copy from which it was taken was verified also.

Nature of presumptive evidence] A presumption means,' in Dig. Ev., by Stephen J., p. 2 (see also p. 161), 6th ed. (1904), a rule of law that courts and judges shall draw a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disproved.'

Presumption is the opposite of proof. It supplies the starting-point for proof, and when complete proof fails it may afford legitimate means of arriving at an affirmative legal conclusion. Where the truth of fact is known there is no need or room for presumption. Where evidence is forthcoming to the contrary, with rare exceptions, presumptions are rebuttable and must yield to proof. A question so raised is a question of fact and of probability depending on the circumstances.' 'We have to decide this, in fact, as jurymen,' says Mellish L.J. in a case cited: per Hamilton L.J., A.-G. v. Horner, 1913, 2 Ch. 189; 82 L. J. Ch. 339; 108 L. T. 609; 77 J. P. 257; 29 T. L. R. 451. No subject of criminal law has been more frequently discussed than that of presumptive evidence, and no subject can be more important; the nature of the presumption of innocence' made in criminal cases being the feature of English law which distinguishes it most strongly from all the continental systems. The principle may be traced back to Bracton: In hoc dubio [whether or not there was an agreement for a gift] standum erit presumptioni, cum nulla sit pro aliqua parte vera probatio quae vincere possit presumptionem,' or 'ib.-donec probetur in contrarium: de Ass. Nov. Dis. f. 214 b.; B. 4, c. 33. A presumption of any fact is properly an inferring of that fact from other facts that are known: it is an act of reasoning': per Abbott C.J., Burdett, 4 B. & Ald. 161, 1820; ib. 121-3, per Best J. It has been said that there is to be no presumption in criminal cases. We are not to imagine guilt where there is no evidence to raise the presumption. But when one or more things are proved, from which our experience enables us to ascertain that another, not proved, must have happened, we presume that it did happen. Nor is it necessary that the fact not proved should be established by irrefragable inference. It is enough if its existence be highly probable, particularly if the opposite party has it in his power to rebut it by evidence and yet offers none; for then we have something like an admission that the presumption is just.' 'The general rule applicable to the doctrine of presumption is that we are to presume that which reasonably accounts for the actual existing state of things': Inhabs. of St. Marylebone, 4 D. & R. 479, 1824, per Bayley J. The instance selected by Coke (Litt. 6 b), to illustrate the nature of very strong presumption is, where a man is discovered suddenly dead in a house, where there is no other man, and another is found running out in haste with a bloody sword. Violent presumption is many times equal to full proof.... Light or rash presumptions have no weight or validity at all': Blackst. 3 Comm. 371.

It is evident that, in every trial, numberless presumptions must be made by the jury; many so obvious that we are hardly aware that they

are necessary, and these present no difficulty; but with regard to others, great care and caution are necessary in making them, and it is for this reason that there are certain practical rules which it is always desirable to observe.

There are indeed some presumptions which, as the phrase is, the law itself makes; that is, the law forbids, in certain circumstances and for certain purposes, any other than one inference to be drawn, whether that inference be true or false. There are but few such presumptions in criminal cases, and those few mostly in favour of the defendant. Where presumptions against the defendant have been imperatively directed by the law, the rule has generally been looked on with disfavour.

Law-Fact] Presumptions are generally distinguished as either of law or of fact. With regard to those of law, there is not much difficulty, the circumstances in which they arise being generally pretty clearly defined. It is not so, however, with regard to those of fact, there being frequently the difficulty not only of deciding whether a particular presumption ought to be made at all, but which of several possible inferences from the same state of facts is the right one. ‘In practice, however, the distinction . . . is by no means well defined, and the line of demarcation, even when visible at all, is often overlooked.' T. s. 111.

Innocence] The difference in civil and criminal cases seems to come to this: One of the most important of disputable legal presumptions is that of innocence. This, in legal phraseology, gives the benefit of a doubt to the accused,' and is so cogent that it cannot be repelled by any evidence short of what is sufficient to establish the fact of criminality with moral certainty. In civil disputes, when no violation of the law is in question, and no legal presumption operates in favour of either party, the preponderance of probability, due regard being had to the burthen of proof, may constitute sufficient ground for a verdict. To affix on any person the stigma of crime requires, however, a higher degree of assurance; and juries will not be justified in taking such a step, except on evidence which excludes from their minds all reasonable doubt.' T. s. 112; Phips. c. 48, citing White, 4 F. & F. 383, 1865— a locus classicus on this doctrine.

Onus] Thus when intent is an ingredient of a crime, the prosecution must show that the act charged was not accidental; it is not on the defendant to prove the contrary. Hence when the judge directed the jury that it was, the C. C. A. quashed the conviction: W. Davies, 8 Cr. A. R. 211; 29 T. L. R. 350, 1913: shooting with intent to resist apprehension. Other cases will be found under Onus; and cf. Mens rea. Thus in criminal cases, there is always a result open to the jury, which is practically looked upon as merely negative, namely, that which declares the accused to be not guilty of the crime with which he is charged. In cases of doubt it is to this view that juries are taught to lean. (For a statutory recognition of not proved,' see p. 403.)

Great caution is doubtless necessary in all cases of presumptive evidence; and, accordingly, L. Hale has laid down two rules with regard to them. I would never convict any person for stealing the goods cuiusdam ignoti, merely because he would not give an account how he came by them, unless there were due proof made that a felony was committed of these goods.' And 'I would never convict any

person of murder or manslaughter, unless the fact were proved to be done, or, at least, the body found dead.' 2 P. C. 290. So it is said by Blackstone, 4 Comm. 359, all presumptive evidence of felony should be admitted cautiously, for the law holds that it is better that ten guilty persons escape, than that one innocent suffer.' The following case was cited by Sjt. Garrow, arguendo in Hindmarsh, 2 Leach, 571, 1792: the mother and the reputed father of a bastard child were observed to take it to the margin of the dock in Liverpool, and after stripping it, to throw it into the dock. The body of the infant was not afterwards seen, but as the tide of the sea flowed and reflowed there, the judge who tried them observed that it was possible the tide might have carried out the living infant, and directed the defendants to be acquitted. This ruling must have turned on the form of the indictment.

Probability a form of presumption-circumstantial evidence] With respect to the comparative weight due to direct and presumptive evidence, it has been said that circumstances are in many cases of greater force and more to be depended on than the testimony of living witnesses'; inasmuch as witnesses may either be mistaken themselves, or wickedly intend to deceive others; . . but circumstances and presumptions naturally and necessarily arising out of a given fact cannot lie' per Mounteney B., Annesley v. Lord Anglesea, 17 St. Tr. 1430, 1743. T. s. 66, vigorously criticises Mounteney B.'s dictum. 'In no sense is it possible to say that a conclusion drawn from circumstantial evidence can amount to absolute certainty, or, in other words, that circumstances cannot lie.' It has been observed, that it is the property of a mass of circumstantial evidence, in proportion to the extent of it, to bring a more and more extensive assemblage of facts under the cognisance of the judge,' i.e. a greater surface is exposed for testing. Bentham's Rationale of Judicial Evidence, vol. 3, p. 251, 1827. 'On the other hand, it may be observed, circumstantial evidence ought to be acted on with great caution, especially where an anxiety is naturally felt for the detection of great crimes. This anxiety often leads witnesses to mistake or exaggerate facts, and juries to draw rash inferences. Not unfrequently a presumption is formed from circumstances which would not have been noticed as a ground of crimination but for the accusation itself;-such are the conduct, demeanor and expressions of a suspected person, when scrutinised by those who suspect him. And, again, any circumstantial evidence, which comes through the medium of witnesses, may, no less than direct evidence, be discoloured, exaggerated, or perverted.' 1 Ph. Ev. 468, 10th ed. See further Starkie on Ev. 4th ed. p. 838; Best on Ev. 10th ed. p. 256, Bk. 3, Pt. 2, ch. 3. The charge of Martin B. in White, 1865, is a strong caution about circumstantial evidence.

Instances] As almost every fact is capable of being proved by inferential as well as by positivé evidence, it would be impossible to enumerate the various cases in which the former evidence has been admitted. It may be useful, however, to give a few varied instances of presumptive proof which have occurred in the course of trials. For a fuller list, see T. Pt. 1, ch. 5, ss. 70-216.

Proof of the possession of land, or of the receipt of rent, is primâ facie evidence of seisin in fee. Best on Ev. s. 366, and on Presumptions, 1844, ch. 3, s. 76, citing Jayne ̧v. Price, 5 Taunt. 326, 1814,