Vreeland v. Vreeland

Garrison, J.

(concurring).

I concur in the opinion of the chief-justice.

In Bower v. Bower, 78 N. J. Law (49 Vr.) 387, we pointed out that the fundamental characteristic of a presumption was that it affected the duty of producing further proof. Under this rule, the presumption, in the present case, in favor of innocence and legitimacy, cast upon the defendant, who was in effect asserting his own guilt and that of the complainant and the illegitimacy of their offspring, the duty of producing proof that should meet and overcome such presumption. This, as pointed out by the chief-justice, he did not do. It is not a question of what inferences of fact might logically be indulged in, but of a rule of law and of the defendant’s failure to bring his case with it, and such failure is not cured or helped by the common law rule as to the presumption of death or by our statutory substitute therefor.

For affirmance — The Chief-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Yoorhees, -Minturn, Bogert, Yredenburgi-i, Yroom, Congdon, Sullivan — II. For reversal — None.