Washington Law Review


Every writer of sufficient intelligence to appreciate the difficulties of the subject-matter has approached the topic of presumptions with a sense of hopelessness and has left it with a feeling of despair. The great Thayer attempted to bring order out of chaos by reducing the entire doctrine to a simple formula, for which he had very little authority in the judicial decisions, and which for a long time received no real judicial sanction but which later received much lip-service and recently has been rigorously applied in a few cases. Wigmore has been content to accept Thayer almost without qualification. Both these distinguished scholars exclude from the field of presumptions two classes of case in which the terminology of presumptions is frequently used. First, conclusive presumptions. It is too clear for argument that a so-called conclusive presumption is only a form: of expression for a positive rule of law. "Given A, B is conclusively presumed", can mean nothing more than that the courts will attach to A all the legal consequences that they attach to B. Thus, to say that twenty years' adverse possession of a tract of land raises a conclusive presumption of a lost grant to the possessor or his predecessor is really to say that such adverse possession gives title to the adverse possessor.

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