10 Colo App 429 N T W 568 (1898); State v Hannibal, etc, there is a presumption in fa v or of legality," 1 that it will be presumed that all facts necessary to legality in a gi v en transaction in point of fact existe D:J - With substantially identical meaning, it may be said that where a particular situation is presented to the court, such an explanation of it will be adopted, if possible, as is consistent with legalit Y 33 Without perceptible difference in the intended meaning, the rule, whate v er it may b E is frequently put in a negati v e forM The law is said to make no presumption against legality, 34 or it is said that there is no presumption that illegality existS 35 A more in- telligible expression of identical meaning would be to the effect that he who relies upon the existence of illegality has either the burden of proof to estab- lish it or the burden of e v idence as to it if he be the non-acto r ;JG CorporationS The presumption of right acting, or against illegality, 37 applies as to the conduct of all corporations, domestic or foreign, municipal 38 or pri v at E No probati v e force attaches to the assumption, whate v er may be true of the facts on which it rests or with which it dealS 39 496 Conflict of Presumptions ; Ci v il CaseS 4 " In ci v il cases, the adminis- trati v e assumption most frequently employed is that against illegality, 41 prac- tically a " presumption of innocence " in ci v il proceedingS 42 Thus it may be said that the presumption from the possession of a note or other negotiable instrument that it has been paid 43 is not sufficient to o v ercome the presumption against frau D44 The presumption- against fraud, being, in this connection a K Co, 1J3 Mo 297, 21 S W14 (1892); Spaulding v Arnol D125 X Y 194, 20 X E 2'Jo, alf'g 6 X Y Supp 336 (1891); 2 Chamb, E v , 1222, N 2, and cases cite D31 J \Yalter Thompson Co v Whitehed, 185 111 454, 50 X E 1106 (1900) ; Hartwell v Root, 19 Johns (X Y) 345 10 Am Dec 232 (1822); Hays v Hill, 23 Wash 730, 63 Pae 576 (1901) ; 2 Chamb, E v 1222 N 3 and cases cite D 32 Friend v Smith Gin Co, 59 Ark So 20 S W374 (1894) : Korn v Schedle r 11 Daly ( X Y ) 234 (1882 ) 33 FUher v Mclnerne Y 137 CaL 28 60 Pac 022, 907, 92 Am st Rep 68 (1902): Osborn v Weldo N 140 Mo 185, 47 S W936 N'.

Lsi: (ireen v Benh Am 08 X Y Supp 248 57 App Di v 9 (1900); 2 Chamb, E v , 1222 N 5, and case< cited 34 Sheffield v Halmer, 52 Mo 474 14 Am Rep 430 (1873) 35 Detroit Sa v Rank v TruesdaiL 38 Mich 430 (1878); Luttrell v State 40 Te X Cr 051 51 S Y v 930 (1S991 36 Friend v Smith Gin Co supra: Bax- ter v ElliS 57 Me 178 (1869 ) 37 United Shoe Ma Ch Co v Ramlose, 210 Mo 631, 109 S W507 (1908) 38 Inhabitants of Wellington v Inhabit- ants of Carinna, 104 Me 252, 71 Atl 889 ( 1908 ) 39 Thus, the fact that the registration of ballots remains unchanged between the time of a balloting and a recount of the v otes can- not be affirmati v ely established as a fact by means of the assumption against illegalit Y Trumbull v Board of Can v assers of City of Jackson, 140 Mich 529 103 X W 993 (1905 ) See as to rules of pleading and administra- tio N 2 Chamb, E v , 1223 mere statement as to the burden of proof, 45 or e v idence, 46 the ruling is, in reality, one to the effect that such possession does not, as a matter of e v idence, establish a prima facie case, in a matter so greatly enhancing the inertia of the cour T 47 So of the presumption against illegalit Y 45 * It amounts, as has been seen, to the statement that he who claims illegality must allege it in his plead- ings or establish it in his proof by a required preponderance of the E v idence Thus on an action in v ol v ing bigamy, the party ha v ing the burden of e v idence as to that fact produces facts tending to show the existence of a former mar- riage at an early date and asks the jury to infer from the so-called presumption against change that the earlier relation still continued at the time of the second marriag E This inference does not constitute, under the circumstances, a prima facie cas E The burden of e v idence is not sustaine DIn announcing a ruling to this effect, the customary form of expression is to say that the presumption of continuance does not o v ercome the presumption against illegality or in fa v or of right conduct or whiche v er of se v eral alternati v e 4!> expressions the judge may see fit to adop T 50 A Contrary v ie W In v iew of the fact that inferences alone possess pro- bati v e force, it seems clear that in establishing the existence of a particular fact, rules of procedure, whether of assumption or otherwise must be denied all weight and the whole question regarded as one for the use of E v idence For this reason the contention that where, in a ci v il case, the presumption of the continuance of life tends to show a subsequent marriage to be bigamous, the presumption of innocence requires that probati v e force should be denied the presumption of continuance of life, has been v igorously repudiated by courts of high authorit Y 51 497 [Conflict of Presumptions]; Criminal Cases; Knowledge of La W r>2 When the proposition of substanti v e law that ignorance of a law furnishes no excuse for its v iolation is paraphrased into the language of logic by saying 50 Case v Case, 17 CaL 598 (1861) ; Stein the presumption of continued life, rebut the v Stein, 66 111 App 526 (1896); Klein v presumption of innocenc E" Hyde Park v Laudman, 2!) Mo 259 (I860); Clayton v Canton, 130 Mass 505 (1S1 ) In such a Wardell, 4 N Y 230 (1850) ; 2 Chamb, E v , case, as in any other, entirely regardless of 1225, N 11, and cases cite DSee general any presumption of innocence in a ci v il or discussion of conflict of presumptions, 2 criminal case, the logical inferences as to 51 Thus, in a case in v ol v ing a pauper set- actual continuance of life should recei v e care- tlement acquired by a second marriage and ful consideratio N Murray v Murray, 6 O r residence in the defendant town, the defense 17 (1876) : 2 Chamb, E v 1225 being that of a prior marriage to a man who 52 2 Chamberlayne, E v idence, 1226, had abandoned the pauper se v eral years be- 1227 fore and not shown to be dead, any such that " e v eryone is presumed to know the law," 53 the effect of its application to a criminal case upon the rights of a defendant may well be stated as being that the presumption of knowledge of law is sufficient to o v ercome the pre- sumption of innocenc E 54 In reality the ruling is as to the sufficiency of cer- tain facts to meet a legal requirement as to the quantum of proo F 498 [Conflict of Presumptions] ; " Presumption of Innocenc E" 55 An v actual " conflict " between a rule of substanti v e law relating to procedure like the " presumption of innocence,'' and the logical effect of certain facts in creating belief in the mind is intrinsically impossibl E When it is said, therefore, that a gi v en fact, or set of facts does or does not o v ercome the " presumption of innocence,'' the most that can be rationally meant by the court is a ruling as to the e v identiary v alue of certain e v idence as constituting a prima facie cas E For example, it is said of e v ery incriminating fact which the go v ernment in- troduces to show the guilt of the accused that it conflicts with the " presumption of innocenc E" Of e v ery material proposition which it succeeds in establish- ing beyond a reasonable doubt, it is asserted that the prosecution has pro tanio, o v ercome the defendant's " presumption of innocenc E" 56 On the contrary, where a gi v en set of facts does not establish guilt beyond a reasonable doubt, it is said that the presumption of innocence still protects the accuse D57 It would thus be entirely possible, were any ad v antage to be so gained, to state the pro- bati v e v alue of any incriminating facts brought against the accused in a crim- inal case in terms of their effect upon this so-called '' presumption of inno- cenc E" 58 On the other hand, the insufficiency of certain facts in a criminal proceeding to make or mar a prima facie case may, in much the same way, be 54 Dunlop v U S, 165 U S 486, 17 S regularity of certain public offices (Dunlop v Ct 375, 41 L e D709 (1896) ; 2 Chamb, E v , I S.

Supra), or from the proposition of ex- 1226, 1227 perience that books of public account are 56 Hemingway v State, 68 Miss 371, 8 So form of saying that the presumption or reg- 317 (1S90) : State v Shelley, 166 Mo 616, 60 ularity (supr A 490 et seq : 2 Cham B E v , S \ v 430 (1901); Dunlop v U S -supr A H93 et ser F} o v ercomes the "presumption 57 Dalton v U S, 154 Fed 461, 83 C C of innocenc E" So on an indictment for A 317 (1907) adultery, it is a familiar proposition of expe- 58 Thus, the fact that the go v ernment need rience that the defendant's wife was ali v e at not, as part of its original case, introduce the time of the a 1 lewd unlawful act may e v idence that the* accused is sane (supr A logically be shown hy proof of her being ali v e 424 N 11: 2 Chamb, E v.

1052 N 1), shortly before, on the presumption that life may be put in the form of saying that the once shown to exist, continues for a reason- presumption of sanity is sufficient to o v er- able time Hiipr A 4->0 : 2 Cham B E v come the "presumption of innocence" Dun- 1042 Com v McCrafh.

140 Mass 296 6 lop v U S, supr A In like manner, the ad- X E 515 (1885 ) This may he stated by ministrati v e canon that the court will assume sa v in-,' that "the presumption of life out- that official duty is properly performed or \ v eihs the presumption of innocence which the circumstance that an inference of fact the law indulgeS" Howard v State, 75 Al A may reasonably be drawn, in the absence of 27 (1883 ) announced in terms of their effect upon this " presumption of innocence," so calle D5!> Continuance of Lif E As has incidentally been intimated, an inference or presumption with which the so called " presumption of innocence " is said, with special frequency, to " conflict " is that of the continuance of lif E 00 The ruling by a presiding judge that the person alleging that a gi v en indi v idual was ali v e at a certain time must pro v e it, or introduce e v idence tending to do so, is spoken of as one to the effect that the presumption of the continuance of life' does not o v ercome the presumption of innocenc E 61 Should the judge's ruling be to the contrary effect, it will probably be found that he is said to ha v e held that the presumption of innocence o v ercomes the presumption of continu- anc E 02 Bigam Y For example, where one of a married couple remarries in the absence of affirmati v e e v idence of the death of the other party and is subse- quently indicted for bigamy, it is for the prosecution to establish the fact that the absent consort was actually ali v e at the time of the second marriag E To make this proof, it cannot, after a short inter v al, rely upon any logical infer- ence or presumption that a person once shown to be ali v e continues to be So G:i So, also, on an indictment for bigamy, where it is sought to pro v e the former marriage by e v idence of cohabitation and recognition of the accused as a hus- band or wife, 04 a ruling that the inference from such e v idence does not estab- lish beyond a reasonable doubt the constituent fact of the existence of the former marriage at the time of the alleged offense may be announced by saying that such facts do not o v ercome the presumption of innocenc E No Presumption in the Matte r The more rational rule has been an- nounced, by many courts e v en in criminal cases, to the effect that under cir- cumstances raising a conflict between the so called " presumption of inno- cence " and the inference or presumption of the continuance of life, the only frequently does, say that the presumption of Rep 670 (1885 ) regularity does not o v ercome the presumption of innocenc E 2 Chamb, E v , 1228 question raised is as to what e v idence is admissible on the subject of the con- tinuance of life, in other words, the whole subject is one of e v idence, there being in reality, no contiict of presumptions in the matte r 05 The same fact, in this connection, is found to possess a Tery different probati v e v alue under v arying circumstanceS 66 65 Uex v Harborne, 2 A&E540, 1 66 Rex v Harborne, supra; 2 Chamb, E v , HurL & \ v 36, 29 E c L 255 (1835 ) See 1231 also, State v Plym, 43 Minn 38n (1890); Howard v State, 75 Al A 27 (1883 ) responsible, 4 as to the existence of a probati v e or res gestae 5 fa Ct 6 If oral, it must be satisfactorily pro v ed 7 by some one who heard i T 8 Admissions may be classed as judicial or extra-judiciaL The judicial admission is one made on the record or in connection with the judicial proceedings in which it is offere DAn extra-judicial admission is one in pais, not made in court for the purposes of the case on trial in which it is offer ed" " If a party has chosen to talk about a particular matter, his statement is e v idence against himself/' 10 One who comes into court as a party is held to explain any statements he may ha v e made in the matte r The extra-judicial admission will readily be distin- guished from the ordinary declaration against interest, an exception to the rule excluding hearsay, considered elsewher E 11 4 Infra, 539 et seq, 540 et seq; 2 Chamb, E v , 1329 et seq, 1337 et seq 5 Moore v Crosthwait, 135 Al A 272, 33 So 28 (1902) ; McBlain v Edgar, Go X J L 634, 48 Atl 600 (1901) ; Hart v Pratt, 19 Wash 560, 53 Pac 711 (1898 ) 6 Confession distinguishe DAs distin- guished from " admission " the term " con- fession " will be confined to the acknowledg- ment of guilt in a criminal case or of facts from which guilt must necessarily be inferre DSupra, 583; 2 Lhamh , E v , 1476 State v Crowder, 41 Ka N 101 21 Pac 208 (1889) : State v Picton, 51 L A An N 624, 25 So 375 (1899) : Musgra v e v State, 28 Te X App 57, I S W927 (1889); State v Carr, 53 v t.