Page images

on the ground of another rule, namely, that the last-proved state of things is presumed to continue; and that, therefore, the existence of a living person being once shown, he is presumed to continue alive, and the burden of proof is upon the party asserting his death. This presumption is held by the civilians to continue for a hundred years ;1 and it has been applied in courts of common law to almost as great an extent. But it is conceived that the presumption of continuance can justly be applied only until a contrary presumption is raised, from the nature of the subject.3 It would surely be unreasonable to presume that an orange, proved to have existed fresh ten years ago, is still sound; a contrary presumption having arisen, from the ascertained average duration of that fruit in a sound state. On the same principle, the average duration of human life, after any given age, being now ascertained and stated in well-authenticated tables, which have been recognized by the courts as safe rules in the calculation of the value of annuities, and in other similar cases, no good reason is perceived why the same tables may not be resorted to as furnishing ground legally to presume the death of a person, after the lapse of the period of the probable duration of his life, in the absence of any evidence to the contrary.4

$ 278 f. Presumption as to death. But however this may be, as a mere presumption of law, the rule is now settled, for most judicial purposes, that the presumption of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from the time they were last known to be living ; after which, the burden of proof is devolved on the party asserting the life of the individual in question. (a) The issue, in such

1 “Vivere etiam usque ad centum annos quilibet præsumitur." Corpus Juris Glossatum, tom. ii. p. 718. And see Mascardus, De Probat. vol. i. concl. 103, n. 5; Id. vol. iii. concl. 1075, n. 1, 1078, n. 6.

? In Atkins v. Warrington (1 Ch. Pl. 258], it is said that the Court of Queen's Bench refused judicially to presume that a person, alive in the year 1034, was not living in the year 1827. See Best on Presumptions, $ 139. And in Benson v. Olive, 2 Stra. 920, when the deposition of a witness, examined in 1672, was offered to be read at a trial had in 1731, on the presumption that the witness was dead ; Reynolds, C. B., refused to admit it, without proof of proper but ineffectual search and inquiry after him. See also Hubback on Succession, pp. 167, 168.

8 See ante, vol. i. 41; 2 Cruise's Dig. tit. 16, c. 1, $ 25; Id. c. 3, SS 8-10 (Greenl. ed.) (2d ed. 1856] ; Fearne, Rem. pp. 21-23.

4 See Hubback on Succession, pp. 171, 172. But see In re Hall, Wallace, Jr. 85. 5 See ante, vol. i. § 41; Best on Presumptions, § 140; Hubback on Succession,

(a) For the presumption of death, see the death even after the seven years have ante, vol. i. ch. 4, note on Presumptions. elapsed. The party who relies on the oc.

There is no presumption of the date of currence of the death at any particular


cases, is an issue of fact; and the jury are at liberty to find the fact of death within the period of seven years, upon the circumstances proved in the case. Among the circumstances material to this issue are, the age of the party, his situation, habits, employment, state of health, physical constitution; the place or climate of the country whither he went, and whether he went by sea or land; the facilities of communication between that country and his former home; his habit of correspondence with his relatives; the terms of intercourse on which he lived with them; in short, any circumstances tending to aid the jury in finding the fact of life or death. (a) There must also be evidence of diligent inquiry at the place of the person's last residence in this country, and among his relatives, and any others who probably would have heard of him, if living; and also at the place of his fixed foreign residence, if he was known to have had any.2

§ 278 g. Reputation in family. Reputation in the family and family conduct admissible in cases of pedigree, which have been treated in the preceding volume, are also admissible in proof of the death of a member of the family.3 (6)

$ 278 h. Evidence less strict in special cases. It may be added, that where the subject of the claim is paramount, so that no injury to the absent owner can result from any mistake in re

pp. 170–173 ; Thorne v. Rolff, Dyer, 185 a; Gilleland v. Martin, 3 M'Lean, 490 ; Doe . Jesson, 6 East, 85.

1 Ibid. ; White v. Mann, 13 Shepl. 361.
2 See Hubback on Succession, pp. 172–174; McCartee v. Camel, 1 Barb. Ch. 455 ;

Andrews, 15 Ad. & El. n. s. 756.
Ante, vol. i. $$ 103-106 ; Cochrane v. Libby, 6 Shepl. 39.

Doe o.


time must give evidence tending to prove to the contrary. 2 Redfield on Wills, 3. that it occurred at that time. In re Phe. A mere failure to hear from a person for ne's Trusts, L. R. 5 Ch. 139; Re Lewes's seven years, residing, when last heard Trusts, L. R. 11 Eq. 236 ; Corbishley's from, in a distant city, does not raise the Trusts, L. R. 14 Ch. D. 846 ; Spencer v. presumption of death. McRee v. Oopelin, Roper, 18 Ired. (N. C.) 333 ; McCartee v. Cir. Ct. St. Louis Co., Mo., 2 Cen. L. J. Carmel, 1 Barb. (N. Y.) Ch. 455 ; State 813. v. Morse, 11 Ired. (N. C.) 160; Hancock (a) Matter of Ackermann, 2 Redf. 0. American Life Insurance Co., 62 Mo. (N. Y.) 154 ; Hancock v. American Life 26 ; Emerson v. White, 9 Foster (N. H.), Insurance Co., 62 Mo. 26; Sheldon v. 482; Whiteside's Appeal, 23 Pa. St. 114. Ferris, 45 Barb. (N. Y.) 124; Whiteside's The general rule is, that the presumption Appeal, 23 Pa. St. 114. of the continuance of life from absence or (6) See ante, vol. i. § 103-108, notes. other cause is regarded as mere presump. Reputation may also be proved by charts, tion of fact, to be weighed by the jury in tables, registers, &c., of births, deaths, connection with the attending circumstan. &c., kept in the family, tombstones, &c. ces. But, for convenience, the period of Shrewsbury Peerage Case, 7 H. of L. C. 1 ; seven years has been fixed as the limit of Haslam v. Cron, 19 W. R. 968 ; Eastman the prima facie presumption of death, in v. Martin, 19 N. H. 152. the absence of all circumstances tending

gard to his death; as, for example, real property, in an action for the mere possession; death may be presumed from circumstances much less weighty and persuasive than will be required where the subject may be irretrievably lost to the right owner, by payment or delivery to the wrong person. Thus, in an action on a policy of insurance on the life of the assured, payable to the plaintiff on his death, Lord Mansfield instructed the jury, that if the evidence left the time of the death so doubtful in their minds that they could not form an opinion, they ought to find for the defendant.1

1 Patterson v. Black, Park, Ins. 433, 434 (2d Am. ed.). And see Masten v. Cookson, 2 Eq. Cas. Abr. 414; Doe v. Deakin, 4 B. & Ald. 433 ; Hubback on Succession, pp. 176–179. For the case of commorientes, or persons perishing in the same calamity, see ante, vol. i. $$ 29, 30; Moehring v. Mitchell, 1 Barb. Ch. 264.


§ 279. Debt lies for sum certain. The action of debt lies for a sum certain; whether it have been rendered certain by contract between the parties, or by judgment, or by statute, as when this remedy is given for a penalty, or for the escape of a judgment debtor.' (a) Where the contract is by a specialty, the execution

1 The common consolidated count in debt is as follows: “For that the said (defendant), on - was indebted to the plaintiff in dollars, for (here state what the debt is for. as in Assumpsit, which see), which moneys were to be paid to the plaintiff upon request; whereby, and by reason of the non-payment thereof, an action hath accrued to the plaintiff to demand and have from the said (defendant) the sums aforesaid, amounting in all to the sum of Yet the said (defendant) has never paid the same,” &c.

On a promissory note, between the original parties, the declaration is as follows: “For that the said (defendant), on made his promissory note and delivered the same to the plaintiff, and thereby, for value received, promised the plaintiff to pay him the sum of in — months, (as the case may be), and, by reason of the nonpayment thereof, an action hath accrued to the plaintiff

, to demand and have from the said (defendant) the sun aforesaid. Yet,” &c.

In debt on a judgment, the count is thus : "For that the plaintiff, at the court There describe the court by its proper title], begun and holden at within and for the (county or district) of on [here state the day appointed by law for holding the term], by the consideration of the justices of said court, recovered judgment against the said (defendant) for the sum of debt or damage, and the further sum of for costs of suit, as by the record thereof in the same court remaining appears ; which said judg: ment remains in full force, unreversed and unsatisfied ; whereby an action has accrued to the plaintiff, to demand and have from the said (defendant) the sums aforesaid, amounting to the sum of Yet the said (defendant) has not paid the same (nor any part thereof),” &c.

The following is the usual count in debt upon a bond : "For that the said (defendant) on- by his writing obligatory of that date, which the plaintiff here produces in court, bound and acknowledged himself indebted to the plaintiff in the sum of to be paid to the plaintiff on demand. Yet the said (defendant) has not paid the same," &c.

In debt for rent, founded upon the defendant's occupancy, and not upon the indenture, the count is as follows : "For that the plaintiff on - demised to the said (defendant) a certain messuage and premises, with the appurtenances, situate in — to have and to hold the same to the said (defendant) for the term of thence next ensuing, yielding and paying therefor to the plaintiff

, during the said term, the yearly rent of

to be paid [here insert the times of payment), by equal portions ; by virtue of which demise the said (defendant) entered into said demised premises, and was possessed thereof thenceforth and until the

day of

when a large sum of money, to wit, the sum of - of the rent aforesaid, accruing up to the day last aforesaid, was due and payable from said (defendant) to the plaintiff ; whereby an action has accrued to the plaintiff to demand and have from the said (defendant) the said sum last mentioned. Yet the said (defendant) has never paid the same," &c.


(a) Knowles v. Eastham, 11 Cush. ties, penalties, and forfeitures imposed by (Mass.) 429 ; Allen v. Lyman, 1 Williams statute, and where no form of action is (Vt.), 20; Addison v. Preston, 10 Eng. given. Com. v. Davenger, 10 Phila. (Pa.) Law & Eq. 489. Debt will lie for liabili. 478 ; Vaughan v. Thompson, 15 III. 39 ;

of the deed is put in issue by the plea of non est factum, which, as it may also be made in an action of covenant, will hereafter be considered under the title of Deed. The liability of an heir, on the bond of his ancestor, will be treated under the title of Heir.

$ 280. Nil debet, when proper plea. When this action is brought upon a parol contract, or for an escape, or for a penalty given by statute, the general issue is nil debet ; under which, as it is a traverse of the plaintiff's right to recover, he must prove every material fact alleged in the declaration. And, on the other hand, as the defendant alleges that he does not owe, this plea enables him to give in evidence any matters tending to deny the existence of any debt, such as a release, satisfaction, arbitrament, nondelivery of goods, and the like. And, generally, when the action is upon a matter of fact, though the fact be proved by a specialty, or by a record, the plea of nil debet is good, and will open the whole declaration, as well as admit the defendant to make any defence showing that he is not indebted. But if the specialty is itself the foundation of the action, though extrinsic facts be mixed with it, the rule is otherwise. Thus, in debt for rent, due by indenture, the action is founded on the fact of occupation of the premises, and pernancy of the profits by the defendant, the lease being alleged only by way of inducement; and, therefore, the plea of nil debet puts the plaintiff upon proof of the whole declaration; and, under it, the defendant may give in evidence a release; payment; or, that possession was withheld by the lessor; or, that he was subsequently ousted or evicted by the lessor,

Portland Dry Dock, &c. Co. v. Portland, discharged in notes or bonds due on good 12 B. Mon. 77; Strange v. Powell, 15 Ala. solvent men residing in the county of 452. It will not lie to recover dues payable Randolph, Virginia.' Butcher v. Carlile, out of a particular fund. Insane Hospital 12 Gratt. (Va.) 520. Such an action will y. Higgins, 15 II. 185. An action of debt lie upon the decree of a court of equity for is not maintainable upon an agreement the payment of a specific sum, whenever that the defendant would carry certain it can be brought upon the judgment of a goods for the plaintiff

, in consideration court of law. The records of both courts that the plaintiff would carry a like quan- are of equal authority. Pennington v. Gibtity for the defendant. Bracegirdle v son, 16 How. (U. S.) 85. Hincks, 24 Eng. Law & Eq. 534. But to An action of debt may be sustained support the action there must be some upon an instrument under seal, for a sum promise, express or implied, to pay the certain payable at a certain time, and to money. So it will not lie on a mortgage a specified person ; and any recital of the which contains no promise to pay the consideration for which it was given may money due. Larmon v. Carpenter, 70 Ill. be rejected as surplusage. Nash v. Nash, 549; Fidelity, &c. Insurance Co. v. Miller, 16 Iil. 79. See also Smith v. Webb. Id. 89 Pa. St. 26.

105; Dunlap v. Buckingham, Id. 109 ; An action of debt may be sustained on Turney v. Paw, Id. 485; Gilmore v. Logan, an obligation to pay a certain sum of 30 La. An. Pt. II. 1276. money with interest, " which sum may be

« PreviousContinue »