*CHAPTER VI:

[ *186 ]

PRESUMPTION OF THE CONTINUANCE OF THINGS IN THE STATE THEY HAVE ONCE EXISTED.

§ 136. It is a very general presumption, that things once proved to have existed in a particular state are to be understood as continuing in that state, until the contrary is established by evidence, either direct or presumptive. Thus, where seisin of an estate has been shown, its continuance will be presumed ;(2) as also will that of a parochial settlement,(b) of the authority of an agent, (c) &c.; and there are several instances to be found in the books, where this presumption has been held stronger than the presumption of innocence, or those derived from the course of nature. Thus, on an indictment for libelling a man in his capacity of public officer, on proof of the prosecutor having held the office previous to the publication of the libel, his continuing to do so was presumed ; (d) and where adultery has been proved, its continuance will be presumed while the parties live under the same roof.(e) So, although the law in general presumes against insanity, yet where the fact of insanity has once been shown, its continuance *will be presumed, and the proof of a subsequent lucid interval lies on the party who asserts it. (f)

[ *187 ]

§ 137. There are two particular cases which will require separate consideration, namely, the presumption of the continuance of debts, obligations, &c., until discharged or otherwise extinguished, and the presumption of the continuance of human life. With respect to the former of these, a debt once proved to have existed is presumed to continue, unless payment, or some other discharge be either proved or established from circumstances.(g) A receipt under hand and seal is the strongest evidence of payment, for it amounts to an estoppel, conclusive on the party making it ;(h) but a receipt.under hand alone, (i) or a verbal admission of payment, (k) is in general only prima facie evidence of it, and may be rebutted. Of the presumptive proof of payment, the most obvious is that of no demand having been made for a considerable time; and previous to the 3 & 4 Will. 4, c. 42, s. 3, the courts, by analogy to the Statute of Limitations, had established the artificial presumption, that, where payment of a bond or other specialty was not demanded for twenty years, and there was no payment of interest or other circumstance to show that it was still in

Sargent v. Reed, 2 Strange, 1228; Houghton v. Gilbart, 7 C. & P. 701, (32 Eng. Com. Law Reps.); Cunningham v. Fonblanque, 6 C. & P. 44, (25 Eng. Com. Law Reps.); Leuckhart v. Cooper, 7 C. & P. 119, (32 Eng. Com. Law Reps.)

(a) Wrotesley v. Adams, Plowd. 193, and the cases there cited; Smith v. Stapleton, Plowd. 431; Cockman v. Farrer, T. Jones, 181. (b) R. v. Tanner, 1 Esp. 304 (c) Smout v. Ilbery, 10 M. & W. 1. (d) R. v. Budd, 5 Esp. 230. (e) Turton v. Turton, 3 Hagg. N. C. 350, (5 Eng. Eccl. Reps. ;) Shelford on Marriage and Divorce, 405.

(f) 3 Stark. Ev. 1276, 3rd ed., and the authorities there cited. Semel furibundus, sem. per furibundus præsumitur. (Gresley on Evidence in Equity, 368; Co. Litt. 246, b.; L. Nott. MS.) Where any insanity is proved, the law presumes the lunatic dangerous, for it is difficult to estimate what he will do. (Pcr Alderson, B., in Hobday v. Davies and Others, Kent Spring Assizes, 1842, MS.)

(g) Jackson v. Irvin, 2 Camp. 48.
(i) Greenl. L. E., arts. 212 and 305.

(h) Gill. Ev. 158.

(k) Id. art. 209.

[ *188 ] force, payment or release ought to be presumed by a jury.(1) *By that statute it is enacted, that all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty, and all actions of debt or scire facias upon any recognizance that shall be sued or brought at any time after the end of that session of parliament, shall be commenced and sued within ten years after the end of that session, or within twenty years after the cause of action, but not after." Even though this statute be not pleaded, the fact of payment may still be presumed by a jury from lapse of time, or other circumstances which render the fact probable ;(m) as, for instance, the settlement of accounts subsequent to the accruing of the debt, and in which no mention is made of it.(n) Where a landlord gives a receipt for rent due up to a certain day, all former arrears are presumed to have been paid; for it is likely that he would take the debt of longest standing first. (o) Previous to the statute, it was laid down by Lord Ellenborough, in Colsell v. Budd,(p) that "after a lapse of twenty years, a bond will be presumed to be satisfied; but there must either be a lapse of twenty years, or a less time, coupled with some circumstance to strengthen the presumption." In Brembridge v. Osborn,(q) also, the same learned judge told the jury, that, where there is a competition of evidence as to the question, whether a security has or has not been satisfied by payment, the possession of the uncancelled security by the claim[ *189 ] ant ought to turn the scale in hisfavour, si nce, in the ordinary course of dealing, the security is given up to the party who pays it. Where land is conveyed to trustees on trust to pay debts, with remainder over, payment of the debts may be presumed from long possession by the remainderman, joined with other circumstances.() Release as well as payment may be inferred from circumstances.(s)

§ 138. On the same principle, although revocation or surrender will not be presumed,(t) they may be inferred from circumstances. In Doe d. Brandon v. Calvert,(u) where, in answer to an ejectment, the defendants set up a mortgage term made to a stranger eighteen years previous, and neither accounted for their possession of it, nor proved any payment of interest under the mortgage; the judge having advised the jury to presume a surrender of the mortgage term, the verdict was set aside by the court; and Mansfield, C. J., there says, "There is no circumstance here to lead to the supposition that the deed was surrendered, except the eighteen years' time; if the deed had been assigned or,surrendered, the instrument whereby it had been assigned or surrendered ought to be in the possession of the plaintiff. No reason is

(2) Oswald v. Legh, 1 T. R. 271; Washington v. Brymer, Peake's Ev., App. xxv. (m) 3 Stark. Ev. 823, 3rd ed. See Cooper v. Turner, 2 Stark. 497, (36 Eng. Com. Law Reps. ;) Lucas v. Novosilienski, 1 Esp. 296; Sellen v. Norman, 4 C. & P. 80, (19 Eng. Com. Law Reps. ;) Pfiel v. Vanbatenberg, 2 Camp. 439.

(n) Colsell v. Budd, 1 Camp. 27; Oswald v. Legh, 1 T. R. 270. See the instance of this given supra, Part I., Ch. 3, art. 34. (0) Gilb. Ev. 157.

(p) 1 Camp. 27. See Oswald v. Legh, 1 T. R. 271. (q) 1 Stark. 374, (2 Eng. Com. Law Reps.)

(r) Anon. Vin. Abr. Ev. Q. a. pl. 17.

(8) Washington v. Brymer, Peake's Ev. App. xxv.; Pickering v. Stanford, 2 Ves. jun.

583; Reeves v. Brymer, 6 Ves. 16.

(u) 5 Taunt. 170, (1 Eng. Com. Law Reps.)

(t) Moreton v. Horton, 2 Keb. 483.

assigned to account why it should not be there; the question is, therefore, whether from the circumstance of the eighteen years only, a surrender can be presumed. I have never known any case in which a shorter time than twenty years has been held sufficient [ *190 ] *to ground the presumption of a surrender, and that is often too short a time, for many times receipts and documents may be lost. But it is enough to say that twenty years is the time prescribed by act of parliament as a bar to an ejectment, by analogy to which the doctrine of presumption has gone; and we might as well say a presumption might be raised by five years in assumpsit, or three years in trespass, as eighteen years in ejectment."

§ 139. We next proceed to the presumptions respecting human life. There is certainly no præsumptio juris relative to its duration in the abstract and in one case the Court of Queen's Bench said, that they could not assume judicially that a person alive in the year 1034 was not still living in 1827.(x) The death of any party once shown to have been alive is matter of fact to be determined by a jury; and as the presumption is in favour of continuance of life, the onus of proving the death lies on the party who asserts it.(y)

This

§ 140. The fact of death may, however, be proved by presumptive as well as by direct evidence.(z) When a person goes abroad, and has not been heard of for a long time, the presumption of the continuance of life ceases at the expiration of seven years from the period when he was last heard of.(a) And the same rule holds generally with respect to persons away from their *usual places of [ *191 ] resort, and of whom no account can be given. (b) is incorrectly spoken of in some books as a presumption of law, (c) but it is, in truth, a mixed presumption, said to have been adopted by analogy(d) to the statute of 1 Jac. 1, c. 11, s. 2, which exempts from the penalties of bigamy any person whose husband or wife shall be continually remaining beyond the seas by the space of seven years together, or whose husband or wife shall absent him or herself the one from the other by the space of seven years together in any parts within the king's dominions, the one of them not knowing the other to be living within that time; and the 19 Car. 2, c. 6, s. 2, respecting the lives of persons in leases, who shall be absent for more than seven years, and who are thereupon to be deemed naturally dead. But where a party has been absent for seven years, without having been heard of, the only presumption arising is, that he is dead: there is none as to the

(x) Atkins v. Warrington, 1 Chitty, Plead. 258, 6th ed. See also Benson v. Olive, 2 Str. 920.

(y) 4 Burge's Colonial Law, 10; Smartle v. Penhallow, 2 Lord Raym. 999; Throgmorton v. Walton, 2 Ro. R. 461; Wilson v. Hodges, 2 East, 312.

(z) Thorne v. Rolfe, Anders. 20, pl. 42; Dyer, 185; Bendl. 86; Webster v. Birchmore, 13 Ves. 362.

(a) Hopewell v. De Pinna, 2 Camp. 113; Doe d. Banning v. Griffin, 15 East, 293; Lee v. Willock, 6 Ves. 606; Rust v. Baker, 6 Sim. 443; Dixon v. Dixon, 3 Bro. C. C. 510.

(b) Doe d. Lloyd v. Deakin, 4 B. & A. 433, (6 Eng. Com. Law Reps. ;) Doe d. George v. Jesson, 6 East, 85; Rowe v. Hasland, 1 Black. 404; Bailey v. Hammond, 7 Ves. 590. (c) Nepean v. Doe d. Knight, 2 M. & W. 912, 913.

(d) 4 Burge's Colonial Law, 10, 11; Shelford's Real Property Acts, 176, 177. There are some traces to be found in the books of this presumption before the statutes, (see Thorne v. Rolfe, Dyer, 185; Bendl. 86; and F. N. B. 196,) which might possibly have been adopted by analogy to the pre-existing presumption, instead of its being copied from them.

BEST ON PRESUMPTIONS OF LAW AND FACT.

time of his death, as to whether he died at the beginning or at the end of any particular period during those seven years: if it be important to any one to establish the precise time of such person's death, he must do so by evidence of some sort, to be laid before the jury for that purpose, beyond the mere lapse of seven years since such person was last heard of.(e) The cases in which this presumption [192] has come in conflict with the presumption of innocence have been considered in the first part of this work; (f) and a jury may find the fact of death from the lapse of a shorter period than seven years, if other circumstances concur.(g)

§141. As connected with the subject of the continuance of human life, it remains to notice a class of cases which have embarrassed the jurists of every country, and on which the law in our own can hardly be considered settled. The cases to which we allude are those unfortunate ones which have from time to time presented themselves, where several individuals, generally of the same family, perish by a common calamity, such as shipwreck, earthquake, conflagration, or battle, and where most usually the priority in point of time of the death of one over the rest would exercise an influence on the rights of third parties claiming under them. The civil law and its commentators were occupied considerably with questions of this nature, and it seems to have been a general principle among them, (subject, however, to exceptions,) that, where the parties thus perishing together were parent and child, the latter, if under the age of puberty, was presumed to have died first; but, if above that age, the rule was re[ *193 ] versed.(h) In the case of husband and wife, the presumption *seems to have been in favour of the survivorship of the husband.(i) All these presumptions were based on the assumption, that the party deemed to have survived was likely, from his superior strength and robustness, to have struggled longer against death than his companions. A full and able examination of the writings of the civilians and old French lawyers on this subject will be found in the 4th volume of Mr. Burge's work on Colonial Law.(j)

§ 142. The law of this country does not appear as yet to have

(e) Doe d. Knight v. Nepean, 5 B. & Ad. 86, (27 Eng. Com. Law Reps. ;) confirmed on error, 2 M. & W. 894. According to a newspaper report, the vice chancellor of England said, in a recent case, that the old law of presumption was, by the altered state of European society, becoming every day less tenable; for, by the facilities which travelling by steam afforded, a man could now, in a very short space of time, and without the least difficulty, transport himself to the backwoods of America, or to Van Diemen's Land, where he might never be heard of. (Watson v. England, "Times," Feb. 23, 1844.)

(f) Part I., Ch. 4, art. 49.

(g) Greenl. L. E. art. 41, p. 47.

(h) Greenl. L. E. art. 29, p. 35; Dig. lib. 34, tit. 5; De rebus dubiis, 1. 9, § 4; l. 16, § 1; 1. 22, and 1. 23. (j) We say the old French lawyers, for the Code Napoleon makes the following express (i) Dig. lib. 34, tit. 5, de Rebus dubiis, l. 9, § 3. and clear provision for cases of this nature, when there are no circumstances from which it can be inferred which party survived. First, if both are under the age of fifteen years, the eldest is presumed to have survived; and if they are both above sixty, the presumption is in favour of the youngest. Secondly, if some are under fifteen, and others above sixty, the former are presumed to have survived. Thirdly, when they all are between the age of fifteen and sixty, and are both of the same sex, the youngest is presumed to have survived; but where they are of different sexes, a male is presumed to have survived a female of equal age, or whose age does not exceed his by a year. hold good until disproved. (Code Civil, liv. 3, tit. 1, ch. 1, des Successions, arts. 720, 721, All these presumptions, however, only 722.)

adopted any decided rule on this subject, (k) but, whenever it can be done, leaves the question of which of two parties survived the longest to be determined by a jury or ecclesiastical judge, according to the facts of the case, such as the comparative age, strength, and danger to which they were respectively exposed, and any other surrounding circumstances calculated to throw light upon it.(7) Still, however, cases have occurred from time to time, in which there [ *194 ] were no such indicia to guide; and as the decisions are not numerous, we will place them before the reader in their chronological order, and then state what appears the legitimate inference to be deduced from them.

§ 143. The first(m) arose in the course of the last century. General Stanwix, in October, 1766, together with his second wife and a daughter by a former marriage, set sail in the same vessel from Dublin to England. The ship was lost at sea, and no account of the manner of her perishing ever received. Upon this, the maternal uncle and next of kin of the daughter claimed the effects of the General, on the principle of the civil law, that, where parent and child perish together, and the manner of their death is unknown, the child must be supposed to have survived the parent. Similar claims were, however, put forward by the nephew and next of kin of General Stanwix, who moved the King's Bench for a mandamus to compel the Prerogative Court to grant administration to him. The rule for that purpose was, after argument, made absolute, on the ground that the question of survivorship sought to be established could only arise under the Statute of Distributions, and that the nephew, being next of kin, was entitled to the administration of the goods of the deceased.(n) This case is clearly no decision on the subject, and the suit is said to have been compromised upon the recommendation of 195 ] Lord Mansfield, who said he knew of no legal principle on [ which he could decide it.(0) The next case is that of Wright v. Sarmuda, or Wright v. Netherwood,(p) where a man, with his wife and child, embarked from Jamaica, and the vessel having never been seen afterwards, all on board were presumed to have perished. The case involves some other points, but Sir William Wynne, on delivering his judgment, says, "I desired the priority of the death of the parties to be considered. I always thought it the most rational presumption that all died together, and that none could transmit rights to

(k) 1 Phill. & Am. Ev. 469; 4 Burge, Col. Law, 27; Greenl. L. E., § 29, p. 35.

(1) The old case of Broughton v. Randall (Cro. Eliz. 503) is well known, where a father and son were seized as joint-tenants, and to the heirs of the son. Both father and son were hanged at the same time in one cart; but because the son, as was deposed by some of the witnesses, survived as appeared by his shaking his legs, and probably some other tokens, his wife was held entitled to her dower.

(m) See, however, the case of Hitchcock v. Beardsley, West. Rep. Temp. Hardw. 445, June 28, 1738.

(n) R. v. Dr. Hay, 1 W. Bl. 640. This case was deemed at the time to be altogether novel, and Mr. Fearne composed two ingenious arguments, one in favour of each of the claimants. See his posthumous works.

(0) Greenl. L. E. 36, § 30; note to Taylor v. Diplock, 2 Phill. 268. If this be true, it shows that, in the opinion of that learned judge, whose acquaintance with the Roman law was pretty extensive, the artificial rules of the Justinian Code on this subject had not then been adopted in this country.

(p) Cited in a note to Taylor v. Diplock, 2 Phill. 266, May 6, 1793.