Page:Black's Law Dictionary (Second Edition).djvu/944

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PRESUMPTION

of some other fact: inferences which common sense draws from circumstances usually occurring in Sll('ll cases. 1 Phil. Ev. 436. Presuinptions are divided into prwsumptirmea jurii 2: dc jure, otherwise called “irrebuitabls presumpti‘ons," (often, but not necessarily, fictitions,) which the law will not sulfer to be re- butted b any counter-evidence: as, that an in- [ant un er seven years is not responsible for his actions; prnzsmnptiones iuria tontum, whlch hold good in, the absence of Cl)lll1(Cl‘-EVi('lBlJCC. but against nhich counter-evidence may be ad- mitted; and pt-atsumptiones Iio-minis, which are not necessarily conclusive, though no proof to the contrary be adduced. Mozley 5: Whitley. There are also Lermin mizrcd presuniptions, or 171‘: -umptions of fact recognized hy presumptions of mixed law nnd fact. These are certain presumptive inferences, which, from their striusth, importance, or frequent occurrence. attract, as it wcre, the observation of the law. The presumption of 21 "lost grant" falls within this class. Best, Ev. 436. See Dirkson v. Vfillrinson, 3 How. 57, 11 L. Ed. Presuniptions of law are di ided into cocnlusion rtzsuinptions and dispufuble presumptions. X conclusive presumption is a rule of law determining the quantity of evidence requi- site for the support of a parllculnr averment which is not permitted to be overcome by any grout that the fact is otherwise. 1 Gi l. Ev

‘sen .

15: U. S. v. Ciark, 5 Utah. 226. I4 Pnc 288;

rsndt v. Morning Journal Ass’n. 81 App. Div. 183. ‘.10 N. Y. Supp. 1002. These are also call- ed ‘nbsolute" and "i1'rciIuttuble" presumptions. IA disiiitnblel resumption] is an inflefiencg ‘ff aw I Ill‘l] hots good unti it is invai ate y proof or s lstronger presumptlilon.

A natural presumption ls t at s ecies of pre-

' or process of probnhlle reasoning, exercise-d h_v persons of ordinary intelligencc, in inferring one fact from another, without reference to any_tecIInlc_al rules. Oth- E:l'\\ISeDKv3allf‘1d "AITIE2-9';l1'IL)il4['l.0 hami.m's" Biirrill,

irc. 4 1,1... ......

Legi imnte prcsuniptiooa have been denomi- nated "\'i(JflEl]i"l0ll; “pr%luaEle," nc}c‘0i'din,-z ttoh the amount 0 weg t w in sttac es to em. Such presuinpticns as are drawn from inade- quste grounds are termed "iight" or “rnsh" presumptions. Brown.

—.Pi-esninption of survivor-ship. A presumption of fact, to the elfect that one person sun-iied another, applied for the purpose of determining a question of succession or similar matter. in a case where the two persons perished in the some catastrophe, and there are no circumstances extant to show which of them actually died first, except those on which the presumption is founded, viz, differences of age, sex, strength, or physical condition.

PRESUMPTIVE. Resting on presumption: created by or arising out of presumption: inferred; assumed: supposed; as, “presumptive" damages. evidence, heir, notice. or title. See those titles.

FRET. In French law. Loan. A con-

tract by which one of the parties delivers an article to the other, to be used by the latter, on condition of his returning, after having used it, the same article In nature or an equiialent of the same species and quality. Duvet-ger. —PréI: E intéx-st. Loan st interest. A contract by which one of the p!ll‘l§ll°S delivers to the othei a sum of money, or commodities, or other niorsble or fungiblc things, to receive for their use a profit detcimimd in fiuor of the lender. Duvei;-,cr.—P1-ét E usage. Loan for use.

936

PRETEXTB

contract by which one of the parties dellyers an article to the other, to be used by the latter, the borrower agreeing to return the specific article after having nscd it. Duverger. A CDDIIICI ldenticai wilh the commodatum (q. ll.) of II‘ civil law.—I-'1-ét de consummation. Loan bi consumption. A contract by which one parrv delivers to the other a certain quantity a things, such as are consumed in the use, on ii. undertaking of the borrower to return to lll an equal quantity of the same species and qua - ity. Duverger. A contract identical with the mutuum (q. o.) of the civil lavi.

PRETEND. To feign or slniulateuo hdl that out as real which is false or base Brown v. Perez (Tex. Clv. App.) 5 S. “L 983; Poweli v. Yeazel. 46 Neb. 2 . 64 N. W. 695. As to the rule against the buying and selling of “any pretended right or title," see PBETENSED RIGHT on TITLE}.

PRETENSE. See FALsi:: Psnrsnsn.

P R E T E N S E D RIGHT, or TITLE. Where one is in possession of land, and sn- other, who is out of possession, claims and sues for it. Here the pretensed right or title is said to be in him who so claims and sues for the same. Mod. Gas. 302. —P:-etensed title statute. The English statute '2 Hcn. VlII. c 9, § 2. It enacts that no one shall sell or purchase any preten.‘ ‘ right, or title to land. unless the vendor lz-is received the profits thereof for one whole you before such grant, or has hcen in actual pDS‘l~‘- sion of the land, or of the reversion or renninder, on pain that both purthaser and vomhr shall eai-h forf:-it the value of such land to am king and the prosecutor. See 4 Broom 5: H.

mm. 150.

PRETENSES. Allegations sometimes mode in a bill in Chancery for the purpose of negativing an anticipated defense. Hunt, Eq. pt. I. e. 1. —I‘alse pretenses. See FALSE.

PRETENSION. In French imv. The claim made to a thing which a party iieliei-es hhnseit entitled to demand, but which is not admitted or adjudged to be his.

PR!-JTER LEGAL. Not agreeable to law; exceeding the limits of law; not legal.

PR!-JTERITION. In the civil law. The omission by a testator of some one of his heirs who is legally entitled to I portion of the inheritance.

P R E T E X T S. In international law. Reasons alleged as justificatory, but which are so only in appearance, or which are even absolutely destitute of all foundation. The name of “p1'etexts" may likewise be applied to reasons which are in themselves true and weil-founded, but, not being of sumcient importance for undertaking a war, [or other international nct,] are made use of only to cover ambitious views. Vatt. Law Nat. bk.

3, c. 3, 5 32..