time of the death. But if the limited time be allowed to elapse with the condition unperformed, no subsequent performance of it can have relation back to the day of the death; for this would involve the absurdity of a man who had already died intestate being deemed to have died testate at a time subsequent to his decease (p). Three kinds of fictions. fictions. §302. Fictions are of three kinds : affirmative, or positive fictions; negative fictions; and fictions of relation (q). In the case of affirmative fictions something 1. Affirmative is assumed to exist which in reality does not; such as the fiction of lease, entry and ouster in actions of ejectment, previous to the 15 & 16 Vict. c. 76; the old fiction that the plaintiff in all suits on the law side of the Exchequer was accountant to the Crown (r); and the ac etiam clause in writs, by means of which the Court of Queen's Bench preserved its jurisdiction over matters of debt after the passing of 13 Car. II. c. 2, st. 2 (s), &c. In negative fictions, on the contrary, that which really 2. Negative exists is treated as if it did not. Thus, a disseisee, after his re-entry, may maintain trespass for injury done to the freehold during his disseisin, on the principle that, so far as the disseisor and his servants are concerned, the freehold must be taken never to have been divested out of the disseisee (t). Fictions of relation are of four 3. Fictions by kinds (u):-First, where the act of one person is taken to be the act of another; as, where the act or possession persons. of a servant is deemed the act or possession of the (p) Huberus, in loc. cit. (9) "Tres constitui solent species. 1. Affirmativa, Positiva, seu Inductiva, qua aliquid ponitur seu inducitur, quod non est. 2. Negativa seu Privitiva, qua id, quod revera est, fingitur, ac si non esset. 3. Translativa, qua id, quod est in uno, transfertur in aliud." Westenbergius, Principia Juris, lib. 22, tit. 3, § 29. (r) 3 Blackst. Comm. 46. rem. 3. De loco ad locum. 4. De fictions. relation. Relating to C C To things. To place. To time. master. So, where a felonious act is done by one person in the presence of others who are aiding or abetting him, the act of that one is, in contemplation of law, the act of all (x),-" qui per alium facit, per seipsum facere videtur (y)." Second, where an act done by or to one thing is taken, by relation, as done by or to another; as where the possession of land is transferred by livery of seisin, a mortgage of land is created by delivery of the title-deeds, or an acceptance of a portion of goods sold is treated as equivalent to a taking possession of the whole. Third, fictions as to place; as, in the case already put, of a contract made at sea, or abroad, being treated as if made in England, and the like (z). There is a curious instance of this kind of fiction in the civil law, by which Roman citizens who were made prisoners by an enemy were on their return home supposed never to have been prisoners at all, and entitled to civil rights as if they had not been out of their own country (a). Fourth, (and lastly), fictions as to time. Thus, where a feoffment was made with livery of seisin, a subsequent attornment by the tenant was held to relate back to the time of the livery (b). It is on this principle that the title of an executor or administrator to the goods of the testator or intestate relates back to the time of his death, and does not take effect merely from the probate, or grant of the letters of administration (c)an extremely useful fiction, to prevent the property of the deceased being made away with. And it is a fixed principle, that every ratification has relation back to the time of the act done,-" Omnis ratihabitio retrotrahitur et mandato æquiparatur (d)," a maxim known in the (r) 1 Hale, P. C. 437. (c) See the cases on this sub (y) Co. Litt. 258 a. See Dig. ject collected in Tharpe v. Stalllib. 43, tit. 16, l. 1, § 12. wood, 5 Man. & Gr. 760; Foster v. Bates, 12 M. & W. 226, and Morgan v. Thomas, 17 Jur. 283. § 6. (a) 3 Blackst. Comm. 107. (a) Dig. lib. 49, tit. 15, l. 12, (b) 3 Co. 29 a. (d) Co. Litt. 207 a, 245 a, 258 a; 9 Co. 106 a; 3 B. Moor, Roman law see Dig. lib. 46, tit. 3, 1. 12, § 4; lib. 43, tit. 16, 1. 1, § 14; lib. 3, tit. 5, l. 6, § 9; Cod. lib. 4, tit. 28, 1.7: and which has been well explained in some modern cases (e). This kind of fiction is also largely to be found in the procedure of the courts, where it is every day's practice to deliver pleadings, sign judgments, and do many other acts nunc pro tunc, &c. (ƒ). tantùm. § 303. The other kind of presumptions of law, which Rebuttable prewe have called rebuttable presumptions, or præsump- law, or præsumptions of tiones juris tantùm, have been thus correctly defined by sumptiones juris one of the civilians, "Præsumptio juris dicitur, quæ ex legibus introducta est, ac pro veritate habetur; donec probatione aut præsumptione contrariâ fortiore enervata fuerit (g)." Every word of this sentence is worthy attention. First, like the former class, these presumptions are intendments made by law; but then, unlike them, they only hold good until disproved. Thus, although the law presumes all bills of exchange and promissory notes to have been given and indorsed for good consideration, it is competent for the parties affected by these presumptions to falsify them by evidence (h). And the legitimacy of a child born during wedlock may be rebutted by proof of the absence of sexual intercourse between its supposed parents (i). So, while the law pre 619; 6 Scott, N. R. 896; 2 Exch. 185 and 188; 4 Id. 790, 798; 1 Wms. Saund. 264 b, note (e). (e) Wilson v. Tummon, 6 Scott, N. R. 894, 6 Man. & Gr. 236; Bird v. Brown, 4 Exch. 786; Buron v. Denman, 2 Exch. 167. (f) See further, on the subject of fictions generally, Finch, Law, 66, and on fictions by relation, Butler and Baker's case, 3 Co. 25 a, and 2 Roll. Abr. tit. Relation, and Trespass per Relation. (g) Voet. ad Pandectas, lib. 22, (h) 3 Stark. Ev. 930, 3rd Ed.; Id. 747, 4th Ed.; Byles on Bills, ch. 10. (i) See on this subject infra, sect. 2, sub-sect. 1, § 330. sumes every infant between the ages of seven and fourteen to be incapable of committing felony, as being doli incapax, still a mischievous discretion may be shewn; and there are many instances of children under the age of fourteen being punished capitally-malitia supplet ætatem (k). To this class belong the well-known preSadler sumptions against guilt, fraud, idiotcy, insanity, infancy, 34: N.. 1150. and coverture; the presumption that legal acts have been performed with the solemnities required by law, that every person discharges the duties or obligations which the law casts upon him (1), &c. The concluding words of the definition of this species of presumptions shew that they may be rebutted by presumptive as well as by direct evidence, and that the weaker presumption will give place to the stronger (m). Presumptions 1o. Grounds and SUB-SECTION II. PRESUMPTIONS OF FACT, AND MIXED PRESUMPTIONS. §304. We now return to a more particular examination of præsumptiones hominis, or presumptions of fact; in treating of which it is proposed to consider-1st. The grounds or sources whence they are derived; 2nd. Their probative force. We shall then briefly explain the nature of præsumptiones mixtæ, or presumptions of mixed law and fact; and, lastly, shew the extent to which the discretion of juries in drawing presumptive inferences is controlled or reviewed by courts of law. § 305. 1°. The grounds or sources of presumptions of fact are obviously innumerable-they are co-extensive with the facts, both physical and psychological, which may, under any circumstances whatever, become eviden (k) 1 Hale, P. C. 26; 4 Blackst. § 329. (m) Infra, sub-sect. 3. tiary in courts of justice (n):-but, in a general view, such presumptions may be said to relate to things, persons, and the acts and thoughts of intelligent agents (o). With respect to the first of these, it is an established Presumptions principle that conformity with the ordinary course of relating to things. nature ought always to be presumed. Thus, the changes and order of the seasons; the rising, setting, and course of the heavenly bodies; and the known properties of matter, give rise to very important presumptions relative to physical facts, or things. The same rule extends to To persons. persons. Thus, the absence of those natural qualities, powers, and faculties which are incident to the human race in general will never be presumed in any individual; such as the impossibility of living long without food, the power of procreation within the usual ages, the possession of the reasoning faculties, the common and ordinary understanding of man, &c. (p) To this head are reducible the presumptions which juries are sometimes called on to make relative to the duration of human life, the time of gestation, &c. Under the third class, namely, To the acts and the acts and thoughts of intelligent agents, come, among telligent agents. thoughts of inothers, all psychological facts; and here most important inferences are drawn from the ordinary conduct of mankind, and the natural feelings or impulses of human nature. Thus, no man will ever be presumed to throw away his property (q), as, for instance, by paying money not due (r); and it is a maxim, that every one must be taken to love his own offspring more than that of another person, &c. (s) Many presumptions of this kind |