KFLCC Kingdom Law 2nd Ed.

936

PRETEXTS

PRESUMPTION

of some other fact; inferences which common sense draws from circumstances usually occur ring in such cases. 1 Phil. Ev. 436. Presumptions are divided into prcesumptionea juris et K de jure, otherwise called "irrebuttable presumptions," (often, but not necessarily, ficti tious,) which the law will not suffer to be re butted by any counter-evidence; as, that an in fant under seven years is not responsible for his actions; prwsumptiones juris tantum, which hold good in the absence of counter-evidence, but against which counter-evidence may be ad mitted; and prwsumptiones hominis, which are not necessarily conclusive, though no proof to the contrary be adduced. Mozley & Whitley. There are also certain mixed presumptions, or presumptions of fact recognized by law, or presumptions of mixed law and fact. These are certain presumptive inferences, which, from their strength, importance, or frequent occur rence, attract, as it were, the observation of the law. The presumption of a "lost grant" falls within this class. Best, Ev. 436. See Dickson v. Wilkinson, 3 How. 57, 11 L. Ed. 491. Presumptions of law are divided into con clusive presumptions and disputable presump tions. A conclusive presumption is a rule of law determining the quantity of evidence requi site for the support of a particular averment which is not permitted to be overcome by any proof that the fact is otherwise. 1 Greenl. Ev. §15; U. S. v. Clark, 5 Utah, 226, 14 Pac. 288; Brandt v. Morning Journal Ass'n, 81 App. Div. 183, 80 N. Y. Supp. 1002. These are also call ed "absolute" and "irrebuttable" presumptions. A disputable presumption is an inference of law which holds good until it is invalidated by proof or a stronger presumption. A natural presumption is that species of pre sumption, or process of probable reasoning, which is exercised by persons of ordinary in telligence, in inferring one fact from another, without reference to any technical rules. Oth erwise called "prwsumptio hominis." Burrill, Circ. Ev. 11, 12, 22, 24. Legitimate presumptions have been denomi nated "violent" or "probable," according to the amount of weight which attaches to them. Such presumptions as are drawn from inade quate grounds x are termed "light" or "rash" presumptions. ' Brown. —Presumption of survivorship. A pre sumption of fact, to the effect that one person survived another, applied for the purpose of determining a question of succession or similar matter, in a case where the two persons perish ed in the same 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. Resting on presump tion; created by or arising out of presump tion ; inferred; assumed; supposed; as, "pre sumptive" damages, evidence, heir, notice, or title. See those titles. PRET. 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 equivalent of the same species and quality. Duverger. —Pret a interet. Loan at interest. A con tract by which one of the parties delivers to the other a sum of money, or commodities, or other movable or fungible things, to receive for their use a profit determined in favor of the lende*. Duverger.—PrSt & usage. Loan for use. A PRESUMPTIVE.

contract by which one of the parties delivers an article to the other, to be used by the latter, the borrower agreeing to return the specific article after having used it. Duverger. A contract identical with the commodatum (q. v.) of the civil law.—Pret de consommation. Loan for consumption. A contract by which one party delivers to the other a certain quantity of things, such as are consumed in the use, on the undertaking of the borrower to return to him an equal quantity of the same species and qual ity. Duverger. A contract identical with the mutuum (g. v.) of the civil law. PRETEND. To feign or simulate; to hold that out as real which is false or baseless. Brown v. Perez (Tex. Civ. App.) 25 S. W. 983; Powell v. Yeazel, 46 Neb. 225, 64 N. W. 695. As to the rule against the buying and selling of "any pretended right or title," see PEETENSED RIGHT OB TITLE. PRETENSED RIGHT, or TITLE. Where one is in possession of land, and an 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. Cas. 302. —Pretensed title statute. The English statute 32 Hen. VIII. c. 9, § 2. It enacts that no one shall sell or purchase any pretended right or title to land, unless the vendor has received the profits thereof for one whole year before such grant, or has been in actual posses sion of the land, or of the reversion or remain der, on pain that both purchaser and vendor shall each forfeit the value of such land to the king and the prosecutor. See 4 Broom & H. Comm. 150. sometimes made in a bill in chancery for the purpose of negativing an anticipated defense. Hunt, Eq. pt I. c 1. —False pretenses. See FALSE. The claim made to a thing which a party believes himself entitled to demand, but which is not admitted or adjudged to be his. PRETENSES. Allegations PRETENSION. In French law. PRETER LEGAL. Not agreeable to law; exceeding the limits of law; not legal. PRETERITION. In the civil law. The omission by a testator of some one of his heirs who is legally entitled to a portion of the inheritance. 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 "pretexts" may likewise be applied to reasons which are In themselves true and well-founded, but, not being of sufficient im portance for undertaking a war, [or other international act,] are made use of only to cover ambitious views. Vatt Law Nat bk. 3, c. 3, § 32. PRETEXTS. PRETENSE. See FALSE PRETENSE.