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analogy, in other cases (r). But although a person, who has not been heard of for seven years, is presumed to be dead, the law raises no presumption as to the time of his death: if, therefore, it be important to any one to establish the precise period during those seven years, at which such person died, he must do so by evidence of some sort, and can neither rely, on the one hand, upon the presumption of death, nor on the other, upon the presumption of the continuance of life (s).

§ 126. In a late case, in which it appeared that a brig had sailed from Demerara for England in December 1828, had touched at Dominica on the 24th of that month, and had never afterwards been heard of, Vice-Chancellor Knight Bruce, after a lapse of seven years, presumed that the vessel and her crew were lost before the 29th of January, 1829, evidence being given that the average length of a voyage from Dominica to England was under two months, and that the West Indian latitudes were subject to hurricanes, which were so much more prevalent between the 1st of August and the 10th of January, that premiums for insurance during that time were double what they were at other periods of

(r) Doe v. Jesson, 6 East, 85; Doe v. Deakin, 4 B. & A. 433 ; King v. Paddock, 18 Johns. 141. In America, it is not necessary that the party be proved to be absent from the United States; it is sufficient if it appears that he has been absent for seven years, from the particular State of his residence, without having been heard of. Newman v. Jenkins, 10 Pick. 515; Innis v. Campbell, 1 Rowle, 373; Spurr v. Trimble, 1 A. K. Marsh. 278; Wambough v. Shenk, 1 Penningt. 167; Woods v. Woods, 2 Bay, 476; 1 N. Y. Rev. Stat. 749, § 6. As to cases where the presumption of life conflicts with that of innocence, see § 92, ante.

(s) Doe v. Nepean, 5 B. & Ad. 86; 2 N. & M. 219, S. C.; Nepean v. Doe d. Knight, 2 M. & W. 894, in Ex. Ch., Lord Denman, in pronouncing the judgment of the court, observes-"It is true the doctrine will often practically limit the time for bringing the action of ejectment in such cases, [viz. where the lessor of the plaintiff claims as grantee in reversion of an estate]; and circumstances may be supposed, as of a lease for seven years, commencing on the death of A., or of a promissory note payable two months after A.'s death, and many other cases which might be put, in which it would be difficult to carry into effect certain contracts, or to have remedies for the breach of them, if the parties interested, instead of making inquiries respecting the person on whose life so much depended, chose to wait for the legal presumption. Such inconveniences may no doubt arise, but they do not warrant us in laying down a rule, that the party shall be presumed to have died on the last day of the seven years, which would manifestly be contrary to the fact in almost all instances."-Pp. 913, 914.

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the year (t). So, upon an issue of the life or death of a party, the jury may find the fact of death from the lapse of a shorter period than seven years, if other circumstances concur; as, if the party, when last heard of, was aged, or infirm, or ill (u), or had since been exposed to extraordinary peril, such as a storm and probable shipwreck (v). But the presumption of the common law, independent of the finding of a jury, does not attach to the mere lapse of time short of seven years (w).

§ 127. Where the succession to estates is concerned, the question, which of two persons is to be presumed the survivor, where both perished in the same calamity, but the circumstances of their deaths are unknown, has been considered in the Roman law and several other codes, but in the common law, no rule on the subject has been laid down. By the Roman law, if it were the case of father and son, perishing together in the same shipwreck or battle, and the son was under the age of puberty, it was presumed that he died first, but if above that age, that he was the survivor; upon the principle, that in the former case the elder is generally the more robust, and in the latter, the younger (x). The French code has regard to the ages of fifteen and sixty; presuming that of those under the former age, the eldest survived; and that of those above the latter age, the youngest survived. If the parties were between those ages, but of different sexes, the male is presumed to have survived; if they were of the same sex, the presumption is in favour of the survivorship of the younger, as

(t) Sillick v. Booth, 1 Y. & Col. 117.

(u) R. v. Harborne, 2 A. & E. 544, per Lord Denman.

(v) Watson v. King, 1 Stark. R. 121; 4 Camp. 272, S. C.; Patterson v. Black, cited 2 Park, Ins. 919, 920. In the case of a missing ship, bound from Manilla to London, on which the underwriters had voluntarily paid the amount insured, the death of those on board was presumed by the Prerogative Court, after the absence of only two years, and administration was granted accordingly, In re Hutton, 1 Curt. 595.

(w) See further on this subject, Hubback, Ev. of Succession, 167, et seq., 758, 759.

(a) Dig. lib. 34, tit. 5; De rebus dubiis, lib. 9, § 1, 3; Ib. l. 16, 22, 23; Menoch. de Præsumpt. lib. 1, Quæst. x. n. 8, 9. This rule, however, was subject to some exceptions for the benefit of mothers, patrons, and beneficiaries.

K

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opening the succession in the order of nature (y). The same rules were in force in the territory of Orleans, at the time of its cession to the United States, and have since been incorporated into the Code of Louisiana (z).

§ 128. This question was much discussed in the common law courts, upon a motion for a mandamus, in the case of Gen. Stanwix, who perished, together with his second wife, and his daughter by a former marriage, on the passage from Dublin to England; the vessel in which they sailed having never been heard of. Hereupon his nephew applied for letters of administration, as next of kin; which was resisted by the maternal uncle of the daughter, who claimed the effects, upon the presumption of the Roman law, that she was the survivor. But this point was not decided, the court decreeing for the nephew upon another ground, namely, that the question could properly be raised only upon the statute of distributions, and not upon an application for administration by one clearly entitled to administer by consanguinity (a). The point was afterwards raised in Chancery, where the case was, that the father had bequeathed legacies to such of his children as should be living at the time of his death; and he having perished, together with one of the legatees, by the foundering of a vessel on a voyage from India to England, the question was, whether the legacy was lapsed by the death of the son in the lifetime of the father. Sir William Grant, M.R., refused to decide the question by presumption, and directed an issue to try the fact by a jury (b).

(y) Code Civil, § 720, 721, 722; Duranton, Cours de Droit Français, tom. 6, pp. 39, 42, 43, 48, 67, 69; Rogron, Code Civil, Expli. 411, 412; Toullier, Droit Civil Français, tom. 4, p. 70, 72, 73. By the Mahometan law of India, when relatives thus perish together," it is to be presumed, that they all died at the same moment; and the property of each shall pass to his living heirs, without any portion of it vesting in his companions in misfortune." See Baillie's Moohummudan Law of Inheritance, 172.

(z) Civil Code of Louisiana, art. 930-933; Dig. of Civil Laws of Orleans, art. 60-63.

(a) R. v. Dr. Hay, 1 W. Bl. 640. The matter was afterwards compromised, upon the recommendation of Lord Mansfield, who said he knew of no legal principle on which he could decide it. See 2 Phillim. 268, n.; Fearne's Posth. Works, 38; Doe v. Nepean, 5 B. & Ad. 91, 92.

(b) Mason v. Mason, 1 Meriv. 308.

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But in a late case, it has been held by Vice-Chancellor Knight Bruce, that a presumption of priority of death might be raised from the comparative age, strength, and skill of the parties; and, therefore, where two brothers perished by shipwreck, the circumstances being wholly unknown, but it appeared that the one was twenty-eight years of age, and the master of the ship, while the other was under age, and acted as second mate, it was presumed that the elder, as the stronger and more experienced sailor, survived the younger (c). The prerogative courts, however, adopt the presumption that both sufferers perished together, and that therefore neither could transmit rights to the other (d); and in the total absence of all evidence of the particular circumstances of the calamity, this rule will probably be found the safest and most convenient; but if any circumstances of the death of either party can be proved, there can be no inconvenience in submitting the question to a jury, to whose province it peculiarly belongs.

§ 129. A rule has been adopted in insurance law, that if a vessel has sailed, and no tidings of her have been received within a reasonable time, she shall be presumed to have foundered at sea (e). By "tidings," are meant, not mere rumours, but some actual intelligence received from persons capable of giving an

(c) Sillick v. Booth, 1 Y. & Col. 117, 126.

(d) Wright v. Netherwood, 2 Salk. 593, n. (a) by Evans; more fully reported under the name of Wright v. Sarmuda, 2 Phill. Ec. R. 266–277, n. (c); Taylor v. Diplock, id. 261, 278. 280; Selwyn's case, 3 Hagg. Ec. R. 748; in the goods of Murray, 1 Curt. 596. In the brief note of Colvin v. Proc. Gen. 1 Hagg. Ec. R. 92, where the husband, wife, and infant (if any) perished together, the court seem to have held, that the primâ facie presumption of law was that the husband survived; but the question was not much discussed; and in Satterthwaite v. Powell, 1 Curt. 705, where a husband and wife perished in the same wreck, the court would not presume that he survived, and consequently refused to grant to his representative the administration of property vested in the wife. The subject of presumed survivorship is fully treated by Mr. Burge, in his Comm. on Colon. and For. Laws, v. 4, p. 11-29; and by Mr. Hubback, in his Ev. of Success. 186 et seq., and 759-764. See also 2 Kent's Comm. 435, 436, 4th ed. n. (b).

(e) Green v. Brown, 2 Stra. 1199; Newby v. Reed, cited 1 Park, Ins. 148; Koster v. Reid, 6 B. & C. 19; 9 D. & R. 2, S. C. But in order to recover on a policy, there must be some evidence, that, when the ship left the port of outfit, she was bound upon the voyage insured, Cohen v. Hinkley, 2 Camp. 51, per Lord Ellenborough; Coster v. Innes, R. & Moo. 333, per Abbott, C. J.

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authentic account (ƒ); and, it seems, that in an action on a policy from an English to a foreign port, the presumption of loss will sufficiently arise, from proof that the ship was not heard of in this country after she sailed, without calling witnesses from the port of destination to show that she never arrived there (g). Neither the law of England, nor the usage of merchants, has fixed any definite period after which the assured may demand payment for his loss, in case no intelligence is received respecting the vessel insured; but a practice has prevailed among insurers of deeming a vessel lost, provided she shall not have been heard of within six months after her departure for any port in Europe, or within twelve months if bound for a greater distance (h).

§ 130. Another presumption connected with the law of insurance is this, that if a ship, shortly after sailing, shall, without visible or adequate cause, become leaky, or otherwise incapable of performing the voyage insured, she shall be deemed to have been unseaworthy at the commencement of the risk (i). This presumption, however, is not, it seems, of so hinding a nature, as to induce the court to grant a third trial, when two special juries have already concurred in finding a verdict in opposition to it (k).

(f) Koster v. Reed, 6 B. & C. 22, per Bayley, J. In that case a witness stated that a few days after the vessel sailed, he heard that she had foundered, but that the crew were saved: Held not sufficient to rebut the presumption of loss which arose from the ship never having arrived at her port of destination, and that plaintiff was neither bound to call any of the crew, nor to show that he was unable to do so.

(g) Twemlow v. Oswin, 2 Camp. 85, per Sir James Mansfield, C. J.

(h) 1 Park, Ins. 149. In Spain and France, the time after which insurance losses may be demanded, is fixed by express regulation. By the ordinances of the former, if a ship insured on going to, or coming from, the Indies, is not heard of within a year and a half after her departure from the port of outfit, she is deemed lost, 2 Magens, 33; by those of the latter, if the assured receives no news of his ship, he may, at the expiration of a year for common voyages, reckoning from the day of the departure, and after two years for those of a greater distance, make his cession to the underwriters, and demand payment, without being obliged to produce any certificate of the loss.-Ordonnance de la Marine, Liv. 3, T. 6, des Assur. Art. 58; 1 Park, Ins. 149.

(i) Watson v. Clark, 1 Dow, 344; Munro v. Vandam, 1 Park, Ins. 469, per Lord Kenyon; Parker v. Potts, 3 Dow, 23.

(k) Foster v. Steele, 3 Bing. N. C. 892; 5 Scott, 25, S. C., per Tindal, C. J., and Park, J.; Vaughan and Coltman, Js., diss.