therefore, a deed be in the possession of the adverse party and not produced, or if it be lost and destroyed, no matter whether by the adverse party or not, secondary evidence is clearly admissible; and, if the deed be in the possession of a third person, who is not by law compellable to produce it, and he refuses to do so, the result is the same, for the object is then unattainable by the party offering the secondary evidence (e). The fabrication of evidence, we may further remark, is calculated to raise a presumption against the party who has recourse to such a practice, even stronger than when evidence has been suppressed or withheld. A considerable degree of caution should, nevertheless, be applied in cases of this latter description, more especially in criminal proceedings; for experience shews that a weak but innocent man will sometimes, when appearances are against him, have recourse to falsehood and deception, for the purpose of manifesting his innocence and ensuring his safety (f). OMNIA PRÆSUMUNTUR SOLENNITER ESSE ACTA. (Co. Litt. 6. b.)—All acts are presumed to be rightly done. official acts. Where acts are of an official nature, or require the con- Public and currence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is, omnia præsumuntur ritè et solenniter esse acta donec probetur in contrarium (g)—every thing is presumed to be rightly (e) Judgment, Doe d. Gilbert v. Ross, 7 M. & W. 121; Marston v. Downes, 1 A. & E. 31; Cooke v. Tanswell, 8 Taunt. 450. (f) 1 Stark. Ev., 3rd ed., 564, 565. As to the presumption in the case of a bill of exchange originally obtained by fraud, see per Lord Abinger, C. B., (g) Co. Litt. 232; Van Omeron Acts of private parties. and duly performed until the contrary is shewn. The following may be mentioned as general presumptions of law, illustrating this maxim:-That a man, acting in a public capacity, is duly authorised so to do (h); that the records of a court of justice have been correctly made (¿), according to the rule, res judicata pro veritate accipitur (k); that judges and jurors do nothing causelessly and maliciously (1); that the decisions of a court of competent jurisdiction are well founded, and their judgments regular (m); and that facts, without proof of which the verdict could not have been found, were proved at the trial (n). So, if the return to a mandamus be certain on the face of it, that is sufficient, and the Court cannot intend facts inconsistent with it, for the purpose of making it bad (o). Where the claimant of an ancient barony, which has been long in abeyance, proves that his ancestor sat as a peer in Parliament, and no patent or charter of creation can be discovered, it is now the established rule to hold that the barony was created by writ of summons and sitting, although the original writ of summons or inrolment of it is not produced (p). The presumption, omnia ritè esse acta, applies also to the acts of private individuals, especially where they are of a formal character, as writings under seal. In ejectment, v. Cook, 8 Price, 653. The Court (k) Per Lord Ellenborough, C. J., (i) Reed v. Jackson, 1 East, 355. (*) Co. Litt. 103. a.; Judgment, Magrath v. Hardy, 4 B. N. C. 796. (1) Sutton v. Johnstone, 1T.R. 503. (m) Per Bayley, J., Lyttleton v. Cross, 3 B. & C. 327. (n) Per Buller, J., Spieres v. Parker, 1 T. R. 145, 146. (0) Per Buller, J., Rex v. Lyme Regis, 1 Dougl. 159. See Rex v. Nottingham Water-works Company, 6 A. & E. 355. (p) The Braye Peerage, 6 Cl. & F. 757; The Vaux Peerage, 5 Cl. & F. 526. therefore, upon the assignment of a term to secure an annuity, a proper inrolment of the annuity deed, in pursuance of 17 Geo. 3, c. 26, has been presumed (q). Likewise, upon proof of title, everything which is collateral to the title will be intended, without proof; for, although the law requires exactness in the derivation of a title, yet, where that has been proved, all collateral circumstances will be presumed in favour of right (r); and, wherever the possession of a party is rightful, the general rule of presumption is applied to invest that possession with a legal title(s). On the same principle, it is a general rule, that, where a person is required to do an act, the not doing of which would make him guilty of a criminal neglect of duty, it shall be intended that he has duly performed it, unless the contrary be shewn-stabit præsumptio donec probetur in contrarium (t); negative evidence rebuts this presumption, that all has been duly performed (u). Thus, on an indictment for the non-repair of a road, the presumption, that an award, in relief of the defendants, was duly made according to the directions of an inclosure act, may be rebutted by proof of repairs subsequently done to the road by the defendants; for, if the fact had been in accordance with such presumption, they ought not to have continued to repair (x). It is, however, important to observe, in addition to the Exception to (g) Doe d. Griffin v. Mason, 3 Camp. 7; Talbot v. Hodson, 7 Taunt. 251; 1 Phill. Ev., 9th ed., 451; and the examples of the above maxim, Id., n. (2); Beresford v. Newton, 1 C., M. & R. 901; Doe d. Shelton v. Shelton, 3 A. & E. 265. (r) 3 Stark. Ev., 3rd ed., 936; 2 Wms. Saund., 5th ed., 42, n. (7). (s) Per Lord Ellenborough, C. J., 8 East, 263. (t) Wing. Max. 712; Hob. R. 297. (u) Per Lord Ellenborough, C. J., Rex v. Haslingfield, 2 M. & S. 561, recognising Williams v. East India Company, 3 East, 192. (x) Rex v. Haslingfield, 2 M. & S. 558; Manning v. Eastern Counties Railway Company, 12 M. & W. 237; Doe d. Nanney v. Gore, 2 M. & W. 321; Heysham v. Forster, 5 Man. & Ry. 277. rule. above general remarks, that, in inferior courts and proceedings by magistrates, the maxim, omnia præsumuntur ritè esse acta, does not apply to give jurisdiction (y). Where, for instance, the examination of a soldier, taken before two magistrates, was tendered in evidence to prove his settlement, but it did not appear by the examination itself, or by other proof, that the soldier, at the time when he was examined, was quartered in the place where the justices had jurisdiction, it was held not to be admissible (z). So, in the case of an order by magistrates, their jurisdiction must appear on the face of such order; otherwise it is a nullity, and not merely voidable (a). Where an examination before removing justices left it doubtful whether the examination. had been taken by a single justice, or by two, the Court stated that they would look at the document as lawyers, and would give it the benefit of the legal presumption in its favour; and it was observed, that the maxim, omnia præsumuntur ritè esse acta, applied in this case with particular effect, since the fault, if there really had been one, was an irregular assumption of power by a single justice, as well as a fraud of the two, in pretending that to have been done by two which was, in fact, done only by one (b). In a case very recently decided, the following remarks were made in reference to this subject, which may be here advantageously inserted:-It cannot be doubted, that, where an inferior court (a court of limited jurisdiction, either in point of place or of subject-matter) assumes to proceed, its judgment must set forth such facts as shew that it has juris (y) Per Holroyd, J., 7 B. & C. 790. (z) Rex v. All Saints, Southampton, 7 B. & C. 783. (a) Per Bayley, J., 7 B. & C. 790; Rex v. Hulcott, 6 T. R. 583; Rex v. Helling, 1 Stra. 8; Rex v. Chilverscoton, 6 T. R. 178; Rex v. Holm, 11 East, 381. (b) Reg. v. Silkstone, 2 Q. B. 520. diction, and must shew also in what respect it has jurisdiction. But it is another thing to contend that it must set forth all the facts or particulars out of which its jurisdiction arises. Thus, if a power of commitment, or other power, is given to justices of a county, their conviction or order must set forth that they are two such justices of such county, in order that it may be certainly known whether they constitute the tribunal upon which the statute they assume to act under has conferred the authority to make that order or pronounce that conviction. But, although it is necessary that the jurisdiction of the inferior court should appear, yet there is no particular form in which it should be made to appear. The Court above, which has to examine, and may control, the inferior court, must be enabled, somehow or other, to see that there is jurisdiction such as will support the proceeding; but in what way it shall so see it is not material, provided it does so see it (c). The rule, therefore, may be stated to be, that, where it appears upon the face of the proceedings that the inferior court has jurisdiction, it will be intended that the proceedings are regular; but that, unless it so appears,—that is, if it appear affirmatively that the inferior court has no jurisdiction, or, if it be left in doubt whether it has jurisdiction or not,-no such intendment will be made (d). (c) Per Lord Brougham, Taylor v. Clemson, (in Dom. Proc.), 8 Jurist, 836, affirming the judgment of the Exchequer Chamber in S. C., 2 Q. B. 978. In this case, many authorities as to the necessity of shewing jurisdiction are collected and reviewed. (d) Per Tindal, C. J., Dempster v. Purnell, 4 Scott, N. R., 39, citing Moravia v. Sloper, Willes, 30, and Titley v. Foxall, Id. 688. |