¶1(dissenting). The birth of the defendant having been testified to by her uncle as occurring within his own knowledge on March 8, 1890, at Ho. 376 Grand street, where he then was living with his sister, and he not having been shown to be in anywise interested in the outcome of the cause, and his testimony having been neither contradicted nor rendered improbable by other evidence, the fact of her infancy pleaded in bar is to be taken as a legally established fact (25 N. Y. 363; 70 id. 179), not nullified by any presumption legitimately presumable from her statements that she knew her age (without mentioning it) and that (without telling what she said) she stated her age to the alderman who married her, non constat, with her parents standing by and consenting to his credence of a misleading statement.
¶2Were it material, it might be presumed that the alderman did his duty. To presione the defendant’s age from his act would base a presumption upon a presumption which may not be by court or jury. The presumption that public officers have done their duty is undoubtedly a legal presumption, but it does not supply proof of a substantial fact. • Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved and not themselves presumed. United States v. Ross, 92 U. S. 281. “ The only *195presumptions of fact which the law recognizes are immediate inference from facts proved.” Manning v. John Hancock Mut. Ins. Co., 100 U. S. 693.
¶3Whether the defendant as she appeared in court impressed the experienced justice as a young- girl or a woman grown is not returned in the record. His indignation at somebody or something does transpire from an ebullition that he would have an indictment drawn. But that offending, too, is intangible. Hpon the case before this court, the judgment should have been for the defendant.
¶4The judgment appealed from should be reversed.
¶5Judgment affirmed, with costs.