While it is presumed that a man is sober until shown to have been intoxicated, yet when he is shown to have been very much in toxicated:a court or jury may infer from that fact alone that he had been drinking intoxicants, and if it was proved that he ,took one drink and his whereabouts and abstinence were not shown, and there was an opportuni ty, it might also be inferred and found with out further proof that he drank more; Hoag land v. Canfield, 160 Fed. 146.
The failure of a party to produce testi mony within his knowledge and power, on a material question involved in the case, raises a presumption that the fact is against him ; Choctaw & M. R. Co. v. Newton, 140 Fed. 225, 71 C. C. A. 655.
The maxim as to all presumptions being against a spoliator of documents applies only when intentional fraud or wrongful con duct is involved, and the presumption is one of fact which may be overcome by explana tion of circumstances; Mastin v. Noble, 157 Fed. 506, 85 C. C. A. 98 ; Drosten v. Mueller, 103 Mo. 624, 15 S. W. 967 ; Warren v. Crew, 22 Ia. 315.
It is not permissible for a jury to base an inference of fact upon another fact which is only established by presumption. Whenever circumstantial evidence is relied on to prove a fact, the circumstances must be proved and not themselves presumed; Cunard S. S. Co. v. Kelley, 126 Fed. 610, 61 C. C. A. 532 ; Man ning v. Ins. Co., 100 U. S. 693, 25 L. Ed. 761.
A favorite maxim is that ignorantio legis neminem excusat, or that every one is con clusively presumed to know the law. There is no such presumption in fact; 2 C. B. 720; L. R. 3 Q. B. 629. See IGNORANCE.
Another very much misused maxim is that one is presumed to intend the natural conse quence of his act. This has been character ized as "merely a fantastic transference into the law of evidence of the phraseology of positive law ;" Chamb. Best, Ev. 310 ; An
droscoggin Bank v. Kimball, 10 Cush. (Mass.) 373; Jones v. Ricketts, 7 Md. 108. So far as it is a rule of law it means simply that mere carelessness is not a ground of defence against legal liability; Germania Fire Ins. Co. v. R. Co., 72 N. Y. 90, 28 Am. Rep. 113 ; Hartford Life & Annuity Ins. Co. v. Gray, 80 Ill. 28 ; Grace v. Adams, 100 Mass, 505, 97 Am. Dec. 117, 1 Am. Rep. 131.
There is a presumption of jurisdiction which attaches to the record of the judgment or the decree of a court of general jurisdic tion in another state, and where the record discloses nothing in regard to the service of process or notice and no evidence is given on the subject, jurisdiction over the person will be presumed ; Smith v. Trust Co., 154 N. Y. 333, 48 N. E. 553.
For a discussion of the "Instinct of Self Preservation as Affording Presumption, of Due Care" in cases where there were no eye witnesses to an accident causing death, see 77 Cent. L. J. 331. In Illinois the rule is that some evidence must be adduced to for tify the presumption of the exercise of due care, though it need not be connected with the occurrence of the accident; Newell v. R. Co., 261 Ill. 505, 104 N. E. 224. In an ac tion against an electric railway company for the death of a pedestrian, it was error to in struct that, because of the instinct of self preservation, a presumption must be indulg ed in that decedent was using due care and did not intend to commit suicide, without referring to testimony on the subject, and charging the jury when such presumption would cease to operate; Jones v. R. Co., 91 Kan. 282, 137 Pac. 796.
See AGE ; DEATH ; INSANITY.