of high treason shall peremptorily challenge above the number of thirty-five of the jury." And by the 4th section it is enacted, "If two or more distinct treasons of divers kinds are alleged in one indictment, one witness produced to prove one of the said treasons, and another witness to prove another of the said treasons, shall not be deemed to be two witnesses to the same treason within the meaning of this act." The stat. 39, 40 G. 3. c. 93. enacts, that "in all cases of high treason, when the overt act alleged in the indictment is the assassination of the king or any direct attempt against his life, or against his person, the prisoner shall be tried according to the same order of trial and upon the like evidence, as if he stood charged with murder." A conviction, therefore, in such a case may proceed on the testimony of a single witness. The language of the statutes of Edward 6. is, that "the offenders are to be accused by two witnesses," that is, two *witnesses are required to prove the offence or overt act of treason; and the stat. of W. 3. expressly confines itself to the proof of the overt acts. With respect to all other acts, therefore, which are merely collateral, the rule of common law is not altered, and one witness is still sufficient (1). * 110 Thirdly, it is an established principle in courts of equity, In courts of equity. that, on a bill praying relief, when the facts charged by the plaintiff, as the ground for obtaining a decree, are proved only by a single witness, and are clearly and positively denied by the answer of the defendant; the court will not grant a decree against the defendant (2) (a). But where the evidence produced by the plaintiff is so far supported and corroborated by proof of concurring circumstances, as (1) Smith's case, Fost. 242. (2) L' Neve v. L' Neve, 1 Ves. 64. 66. 3 Atk. 646. S. C. 1 Ves. 97. 125. 2 Ves. jun. 243. East Ind (a) Vide Clason v. Morris & Mowatt, 10 Johns. Rep. 524. Beatty v. Smith & Thompson, 2 Hen. & Mun. 395. Heffner v.Miller & others, 2 Mun. 43. Salter v. Speir, Tayl. 318. In ecclesiastical courts. * 111 to outweigh the denial in the defendant's answer (3), (abstracting from the mind, that the evidence on the part of the plaintiff comes from a disinterested witness (4),) the former rule will not apply; and the evidence of a single witness, so strengthened and confirmed, will enable the court. to decree against the answer. And there are many cases, in which the court has granted a decree against the defendant on the testimony of a single witness, when his testimony has not been clearly and positively contradicted by the answer (5). By the civil law, as was before observed, two witnesses are required for the proof of a fact; and such is the rule in ecclesiastical courts, whose practice is founded upon that law. But even in those courts, if a matter cognizable at common law arises incidentally in an ecclesiastical suit, (as, where a revocation of a will is pleaded, or payment of a *legacy, or plene administravit, and the like,) the proof ought to be according to the principles and course of the common law; and if they disallow the plea, because it is proved only by a single witness, they may be controlled by a prohibition (1). Presumptive evidence. SECT. II. Of the Nature of Presumptive Evidence, EVIDENCE Consists either of positive or of presumptive proof. The proof is positive, when a witness speaks directly to a fact from his own immediate knowledge; and presumptive, when the fact itself is not proved by direct *(3) Walton v. Hobbs, 2 Atk. 19. Janson v. Rany, ib. 140. Pember v. Mathers, 1 Bro. Ch. C. 52. Toole v. Medlicott, 1 Ball & Beatty 403. Biddulph v. St. John, 2 Sch. & Lef. 521. (4) 9 Ves. 283. (5) 3 Atk. 650, 1 Ves. 66. 97. 12 Ves. 80. (1) Sir W. Juxon v. Lord Byron, 2 Lev. 64. Richardson v. Disborow, 1 Ventr. 291. Shotter v. Friend, Carth. 142. 1 Ld. Ray. 221. Cowp. 424. Com. Dig. tit. Prohibition, (F. 13.) and (G. 23.) testimony, but is to be inferred from circumstances, which either necessarily or usually attend such facts (2). It is obvious therefore, that a presumption is more or less likely to be true, according as it is more or less probable, that the circumstances would not have existed, unless the fact, which is inferred from them, had also existed; and that a presumption can only be relied on, until the contrary is actually proved. In order to raise a presumption, it cannot be necessary to confine the evidence to such circumstances alone, as could not have happened, unless they had been also attended by the alleged fact,-for that in effect would be to require in all cases evidence amounting to positive proof;-but it will be sufficient to prove those circumstances, which usually attend the fact. If the circumstantial evidence be such, as may afford a fair and reasonable presumption of the facts to be tried, it is to be received and left to the consideration of the jury, to whom alone it belongs to determine upon the precise force and effect of the circumstances proved, and whether they are sufficiently satisfactory and convincing to warrant them in finding the fact in issue (3). *However, for the purpose of trying the weight and effect of such presumptive proofs, it will often be of the utmost consequence to consider, whether any other fact happened, which might have been attended by the same circumstances, and with which of the facts. they are most consistent. It has been very justly observed (1), that when the proofs are dependent on each other, or when all the proofs are dependent upon one, the number of proofs neither increase nor diminish the probability of the fact; for the force of the whole is not greater than the force of that, on which they depend; and if this fails, they all fall to the ground. But when the proofs are distinct and independent of each other, the probability of the fact increases in proportion to the number of the proofs; for the falschood of one does not diminish the veracity of another. (2) Gilb. Ev. 142. (3) 2 H. Bl. 297. (1) Beccaria, ch. xiv. * 112 Pr. Ev. of legitimacy. * 113 The fact of the birth of a child during a lawful marriage · is prima facie evidence of its legitimacy. Formerly the rule was so strict, that children were presumed to be legitimate, unless the husband had been out of the kingdom during the whole time of gestation; but this doctrine has been long exploded. The general principle, to be deduced from the authorities on this subject, as it was laid down and confirmed by the case of the King v. Luffe (2), appears to be this, that where there are circumstances, which show an impossibility that the husband could be the father, whether arising from his being under the age of puberty, or from his labouring under disability occasioned by natural infirmity, or from the length of time elapsed since his death, or from his continued absence, the presumption is at an end, and the child will be deemed illegitimate (a). In an earlier case (3), the court of King's Bench held, that there was no necessity to prove the impossibility, if the other circumstances of the case tended strongly to repel the presump*tion of access. And this point has been since established by the opinion of the Judges in the case of the Banbury claim of peerage (1), in which it was held, that, where the husband and wife are not proved to be impotent, and have had opportunity of access to each other during the period, in which a child could be begotten and born in the course. of nature, the presumption of legitimacy arising from the birth of the child during wedlock may be rebutted by circumstances inducing a contrary presumption: and the fact of non-access, (that is, the non-existence of sexual intercourse,) as well as the fact of impotency, may always be lawfully proved by means of such legal evidence, as is strictly admissible in every other case, where a physical fact is to be proved. It has been held, that, in the case of (2) 8 East 193. 206. (3) Goodright dem. Thompson, v. Saul, 4 T. R. 356. (1) 2 Selw. N. P. 681. MS. (a) See this subject discussed in the case of The Commonwealth v. Shepherd, 6 Binney 283. à divorce a mensa et thoro, a child born after such a separation is presumed to be illegitimate (2); in this case, therefore, the party who asserts the child's legitimacy, will have to prove access (a). A receipt for rent due on a certain day is strong presumptive evidence, that the former rents have been regularly paid down to that time. But it is only presumptive evidence; and the other party will be allowed to prove the contrary. "If a man gives a receipt for the last rent, says Ch. B. Gilbert (3), the former is presumed to be paid, because he is supposed first to receive and take in the debts of the longest standing; especially if the receipt be in full of all demands, then it is plain there were no debts standing out; and if this be under hand and seal, the presumption is so strong, that the law admits of no proof to the contrary." So, in an action for work and labour done for the defendant, proof that the plaintiff and other workmen, who were employed by the defendant, came regularly to receive their wages from the defendant, whose practice was to pay every week, and that the plaintiff had not been heard to complain *of non-payment, would be presumptive evidence of payment to meet a stale demand (1) (b). (2) Parishes of St. George v. St. Margaret, 1 Salk. 123. (1) Lucas v. Novosilienski, 1 Esp. N. P. C. 296. Of payment. #114 (3) Gilb. Ev. 142. Mass. Rep. (a) Marriage may, in most instances, be presumed from cohabitation, reception by the party's family as man and wife, and other circumstances. Harvey v. Harvey, 2 Black. Rep. 377. Read v. Passer, 1 Esp. Rep. 213. S. C. Pecke's Cas. 231. Fenton v. Reed, 4 Johns. Rep. 52. Newburyport v. Boothbay, 9 414. Telts et ux. v. Foster & Williams, Tayl. 121. Purcell v. Purcell, 4 Hen. & Mun. 507. But in actions of crim. con. and prosecutions for polygamy, an actual marriage must be proved. 4 Burr. 2057. 7 Johns. Rep. 314. ante, 74. n. (b) An order to pay money is, in the hands of the drawee, evidence of payment, otherwise of an order to deliver goods. Blount v. Starkey's Admrs. Tayl. 110. |