and Denn v. Barnard, Cowp. 595, 1777. Cf. Co. Litt. 15 a. So possession is presumptive evidence of property in chattels. A deed or will thirty years old is presumed to have been duly executed, provided some account be given of the place where it was found, &c. T. s. 87. See Potez v. Glossop, 2 Ex. 195, 1848. The licence of a lord to enclose waste may be presumed after twelve or fourteen years' possession, the steward of the lord having been cognisant of it. Doe v. Wilson, 11 East, 56, 1809. The flowing of the tide is presumptive evidence of a public navigable river. Miles v. Rose, 5 Taunt. 705, 1814. Cf. Montague, 4 B. & C. 602, 1825, for presumption of extinction of right of navigation. The existence of an immemorial custom may be presumed from an unexplained and uncontradicted' usage of twenty years. Joliffe, 2 B. & C. 54; 3 D. & R. 240, 1823. So the continuance of things in statu quo will be generally presumed; as where plaintiff being libelled in his official character proves his appointment to the office before the libel, his continuance in office at the time of the libel need not be proved though averred. Budd, 5 Esp. 229, 1805 (vice versâ, p. 9). Cf. Holland, 1787.

Consequences] So the law presumes that a person intended that which is the immediate or probable consequence of his act. Dixon, 4 Campb. 12; 3 M. & S. 15, 1814. See T. s. 80. See Malice, below. So a letter is presumed, as against the writer, to have been written upon the day on which it bears date: Hunt v. Massey, 5 B. & Ad. 902; 3 Nev. & M. 109, 1834; and whether written by a party to the suit or not: Potez v. Glossop; and a bill is, as a rule, presumed to be made on the day it is dated, by 45-6 Vict. 61, 13 (1).

Date of documents] So the presumption is that indorsements on a note admitting the receipt of interest were written at the time of their date. Smith v. Battens, 1 Moo. & R. 341, 1834. Indeed, it is a general presumption that all documents were made on the day they bear date. Davies v. Lowndes, 7 Scott, N. R. at 214, 1843; Potez v. Glossop.

Innocence and legality] The law presumes a man to be innocent until the contrary is proved, or appears from some stronger presumption: Bracton, as above, f. 192 b. c. 22 (quod sit bonus homo'). In other words, a man cannot be presumed to have committed an illegal act without some evidence of it. Thus, a criminal information was granted against a theatre proprietor for representing on the stage as a murderer a man charged with (and afterwards executed for) murder. Williams and Romney, 2 L. J. K. B. 30; 26 R. R. 624, 1823. 'And this presumption is not confined to proceedings instituted for the purpose of punishing the supposed offence. but it holds in all proceedings for whatever purpose originated, and whether the guilt of the party comes in question directly or collaterally. . . It is, however, in general, sufficient to prove a primâ facie case. Best, Ev. s. 346. Cf. White, 1865. Conversely, there is a presumption that a confession is true.

Against immorality] There is also a general presumption against any immoral conduct. Thus legitimacy is always presumed: Banbury Peerage case, 1 Sim. & S. 155, 1811; and reputation of cohabitation is generally presumptive proof of marriage: Doe v. Fleming, 4 Bing. 266, 1827; except in cases of bigamy. Where a woman, whose husband

twelve months previously had left the country, married again, the presumption that she was innocent of bigamy was held to preponderate over the usual presumption of the duration of life: Twyning, Inhabs. of, 2 B. & Ald. 386, 1819. So it will not be presumed that a trespass or other wrong has been committed: Best, Ev. s. 350; and there is always a presumption in favour of the truth of juridical testimony. lb. s. 352.

Conflict of Presumptions] But observations in Twyning, Inhabs. of, on conflicting presumptions were questioned by the court in Inhabs. of Harborne, 2 Ad. & E. 544, 1835. It has now been decided that no presumption arises that the person is alive, but that it is a question for the jury: see Lumley, 1869; and on conflicting presumptions, Middleton v. Barnard, 4 Ex. 241, 1849; Phips. c. iv. p. 26; and The course of Nature, below.

Omnia ritè esse acta] This well-known presumption, which is nearly akin to that of innocence' (Phips. c. 48, p. 645), is of very common application. The presumption may be rebutted: Inhabs. of Hastingfield, 2 M. & S. 558, 1814. See Holland, 1787. In Stewart, 13 Cox C. C. 296, 1876, it was presumed that a consul at New York had taken proper steps with regard to the transmission of witnesses. But in Frankland, L. & C. 276; 32 L. J. M. C. 69; 9 Cox C. C. 273, 1863, the court held that the incorporation of a company could not be presumed from the fact that persons called themselves and purported to be a trade corporation and acted as such, whatever might be the case with respect to a corporation for public purposes or by prescription.

In Langton, 1876, it was held that it was not necessary to produce the certificate of incorporation of a company, but that the existence of a limited company was sufficiently proved by evidence that it had carried on business as such. On public capacity, see p. 9.

The course of nature] It is a presumption of law that males under fourteen are incapable of sexual intercourse. Philips, 8 C. & P. 736, 1839; Brimilow, 9 C. & P. 366, 1839. So it is a presumption of fact that the period of gestation in women is about nine calendar months. The exact limits of this period are, both legally and scientifically, very unsettled; and if there were any circumstances from which an unusually long or short period of gestation might be inferred, or if it were necessary to ascertain the period with any nicety, it would be desirable to have special medical testimony upon the subject. The subject was elaborately discussed in the Gardner Peerage case, and the scientific evidence given in that case will be found in the report of it by Le Marchant (London: Butterworth, 1828); and see Best, ss. 339-40. For ordinary purposes, however, it will be a safe presumption that fruitful intercourse and parturition are separated by a period not varying more than a week more or less from nine months.

There is no presumption of law that life will not continue for any period however long, and juries are not justified in presuming, as a fact, that a person is dead who has been heard of within seven years: Hopewell v. De Pinna, 2 Campb. 113, 1809; but the presumption of the continuance of life ceases at the expiration of seven years from ' the last news. Best, s. 409 (see s. 408); this is in analogy to the period fixed by rpd. 1 Jac. 1, c. 11, s. 2 (see now 24 & 25 Vict. c. 100, s. 57), which absolves from the penalties of bigamy after an absence

of seven years, and cf. 18-19 Car. II. 11 (or 19 Car. II. c. 6), 2. See Wiltshire, 1881.

Possession of stolen property] It has already been stated that possession is presumptive evidence of property; but where it is proved, or may be reasonably presumed (1) from the proved circumstances, that the property in question is stolen property, the onus probandi is shifted, and the possessor, to rebut an accusation, is bound to explain reasonably that he came by it honestly; and, if he fail to do so, the presumption is that (2) he is the thief or the receiver, according to circumstances.

1. The circumstances in which the presumption of theft may be safely made are tolerably obvious. Thus,' it is said by East, P. C. 657, a man being found coming out of another's barn, and upon search corn being found upon him of the same kind with what was in the barn, is pregnant evidence of guilt. So persons employed in carrying sugar and other articles from ships, and wharfs, have often been convicted of larceny at the Old Bailey, upon evidence that they were detected with property of the same kind upon them, recently upon coming from such places, although the identity of the property, as belonging to such and such persons, could not otherwise be proved. But this must at least be understood of articles like those above mentioned, the identity of which is not capable of strict proof from the nature of them.' Dredge, 1 Cox C. C. 235, 1845, was indicted for stealing a doll and other toys. The prosecutor proved that he kept a large toy-shop, and that Dredge came into the shop dressed in a smock frock. After remaining there some time, on some suspicion, he was searched, and under his smock were found concealed the doll and other toys. The prosecutor could not go further than to swear that the doll had once been his, but he could not swear that he had not sold it, and he had not missed it; and from the mode in which he kept his stock it was not likely that he would miss that or any other of the articles found on defendant. Erle J. directed an acquittal. Burton, Dears. & P. 282, 1853, was indicted for stealing pepper. He was found coming out of a warehouse in which there was a quantity of pepper both loose and in bags; when stopped and accused, he threw some pepper on the ground, and said, 'I hope you will not be hard with me.' On Dredge being cited, Maule J. pointed out the distinction that in this case defendant had, in fact, admitted that the pepper had not been honestly come by; and he added if a man go into the London Docks sober, and comes out of one of the cellars, wherein are a million gallons of wine, very drunk, I think that would be reasonable evidence that he had stolen some of the wine in that cellar, though you could not prove that any wine was missed.' Hooper, Hooper, 1 F. & F. 85, 1857, was charged with stealing 190 lbs. of Lydney coal. He was left with a ton of that sort in a cart at twelve o'clock, and delivered them, according to his orders, at one o'clock. At half past twelve o'clock he sold 190 lbs. of Lydney coal to a person living in the same town, but there was no evidence of the quantity delivered being less than a ton, or of any coal having been missed. Willes J. left it to the jury to say whether the 190 lbs. sold by defendant were stolen: not guilty.

2. And it is clearly established that, in order to put the accused on his defence, his possession of the stolen property must be recent; although what shall be deemed recent possession must be determined by the nature of the articles stolen, i.e. whether they are of a nature likely to pass rapidly from hand to hand; or of which the accused

would be likely from his situation in life, or vocation, to become possessed innocently.' Best, s. 211.

Where stolen property (it does not appear of what description) was found in the possession of a person, but sixteen months had elapsed since the larceny, Bayley J. held that he could not be called on to account for its coming into his possession. Anon., 2 C. & P. 459, 1826; Cockin, 2 Lew. C. C. 235, 1836. Where two ends of woollen cloth in an unfinished state, of about twenty yards each, were found in defendant's possession, two months after they had been stolen, Patteson J. held that he ought to explain how he came by them. The length of time is to be considered with reference to the nature of the articles which are stolen. If they are such as pass from hand to hand readily, two months would be a long time; but here that is not so." Partridge, 7 C. & P. 551, 1836. But Parke B. directed an acquittal where the only evidence against defendant was that certain tools had been traced to his possession, three months after their loss: Adams, 3 C. & P. 600, 1829. Crowhurst, 1 C. & K. 370, 1844, was indicted for stealing a piece of wood; on the piece of wood being found by a constable in defendant's shop about five days after it was lost, he stated that he bought it of one Nash, who lived about two miles off. Nash was not called as a witness for the prosecution, and no witness was called by defendant. As Alderson B. said to the jury, in cases of this nature you should take it as a general principle that, where a man in whose possession stolen property is found gives a reasonable account of how he came by it, as by telling the name of the person from whom he received it, and who is known to be a real person, it is incumbent on the prosecutor to show that the account is false; but if the account given by the prisoner be unreasonable or improbable on the face of it, the onus of proving its truth lies on him '; it appears, therefore, he thought that in this case defendant's account was sufficiently reasonable to shift the burden of proof back again on to the prosecutor; the jury acquitted, but it is not clear whether the case was left to their consideration. Maule J. did the same as Parke B. in Adams, where a horse, alleged to have been stolen, was not traced to defendant's possession until six months after the theft: Cooper, 3 C. & K. 318, 1852: relying on which Channell B. did the same where a sheep missed in September was found in March in the flock of a neighbouring farmer against whom there was no evidence of the taking, and the only evidence of guilty knowledge was some contradictory statements' by him when it was found': Harris, 8 Cox C. C. 333, 1860. Where defendant was the servant of a firm which owned a large number of shovels, four of which were found in his possession-some they could only prove to have been in their possession eighteen, and some eight months previously-it was held that the question of larceny was properly left to the jury, although there was no evidence to show when they were missed, or how long they had been in his possession: Knight, L. & C. 378, 1864, where, however, there was some other evidence against defendant. Several of these cases were cited to the C. C. A. in W. Smith, 1909, where the interval was six weeks: sentence was reduced partly because L. Alverstone doubted whether the interval was not too long for the presumption to operate. Wilson, 26 L. J. M. C. 45, 1857, was indicted for stealing some articles of dress. It was proved that the property was stolen, and sold by defendant, who on being apprehended said, that C. and D. brought them to his house and that he sold them. In consequence of this C. and D. were apprehended, and C. was convicted for stealing other articles taken from

prosecutor's house at the same time as those in question; D. was discharged. A constable made inquiries about the statement made by defendant how he came by the goods, but no evidence of the outcome of such inquiries was received, being objected to by defendant's counsel. Neither C. nor D. was called as witness for the prosecution, and no witness was called by defendant. A conviction was upheld by the C. C. C. R. on the ground, as stated by Pollock C.B., that there was some evidence for the jury on which defendant might be convicted, though he disapproved of the verdict.

Hale urges great caution in cases of this sort: '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': 2 P. C. 290; and East, 2 P. C. 665, does the same in the case of the common mode of defence, to state a delivery by a person unknown, and of whom no evidence is given'; though little or no reliance can consequently be had upon it. . . . Where this excuse is urged, it is a matter of no little weight to consider how far the conduct of the prisoner has tallied with his defence, from the time when the goods might be presumed to have first come into his possession.'

Statutory presumptions] Instances are the possession of filings or clippings of gold or silver coin, of more than five pieces of foreign counterfeit coin, of coining tools, the possession of instruments or paper for foreign exchequer bills and bank notes, the possession of deer, or implements for taking deer, of implements for housebreaking, of goods belonging to ships wrecked or stranded, the possession of naval and military stores, &c.-for which, respectively, see Index.

Malice-Consequences] This phrase is traditional but useless. The late W. F. Craies was 'almost tempted to the conclusion that the meaning [of malice'] varies almost infinitely secundum subjectam materiem, and that the only sense which the term can safely be predicated not to have in any given legal context is that which it has in popular language, viz., spite or ill-will. It certainly has different meanings with respect to responsibility for civil wrongs and responsibility for crime; and even with respect to crime it has a different sense according as it is used with reference to murder, libel or the capacity of an infant to commit crime, expressed by the rule malitia supplet aetatem. Malice' is a term which has crept into law books with a result so confusing that the law has suffered by its presence, and cannot be correctly interpreted except by explaining it away or relegating it to its proper place in ethics or religion: 8 Encyc. of Laws of England, 2nd ed. 1907, art. Malice. For practical purposes all that is wanted under this head is the rule as stated by Prof. Kenny: A sane adult is presumed to intend all the consequences likely to flow directly from his intentional conduct': Outlines of Criminal Law, 8th ed. 1917, p. 329, citing Philpot, 7 Cr. A. R. 140, 1912; W. Davies, 1913. The judge did not explain that the consequences of his acts can only mean of his conscious acts, not of his mistakes': per Channell J.; cf. Dixon, 1814. So where a jury found murder, but they believed it was done without premeditation,' Byles J. refused to receive the verdict, saying, the prosecutor is not bound to prove that the homicide was committed from malice prepense. If the homicide be proved, the law presumes the malice; and, although that may be rebutted by evidence, no such attempt has been made here.' Maloney, 9 Cox C. C.

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