For this reason it is difficult for us to decide, free from prejudice, the question whether or not oaths judicial and extra judicial are useful in furthering the ends for which they were designed. The presumption which always, and indeed properly, exists in favor of a long-established custom must be combatted and overcome. THE HISTORY OF OATHS. We find records of the administration of oaths in the Old Testament. Demosthenes swore a solemu oath by the dead of Marathon. The Athenians were accustomed to swear by their fathers' heads. Grotius says in his work De jure belli et pacis: “Apud omnes populos, et ab omni avo, circa pollicitationes, promissa et contractus, maxima semper vis fuit juris jurandi." To again quote from a Latin author: Cicero also lends his testimony to the utility of oaths in his day and generation by writing: "Nullum vinculum ad astringendam fidem jure jurando majores arctius esse voluerunt." Our Saviour in effect took a judicial oath when Caiaphas, having said unto him: "I adjure thee by the living God that thou tell us whether thou be the Christ, the Son of God;" without objection he made answer. We must remember that social and political quesThat which we are now to decide is whether oaths totions to-day vary from the same questions yesterday. day serve the purposes for which they are employed. The forms of oaths have been many and varied. The oaths of the ancient Athenians aud of Demosthenes have been referred to. There are numerous ex one day, so that the judges may at any time during the term revise their judgments.' These definitions of the words used are in harmony with those given by other law writers; indeed no writer that we have examined gives any other or different meaning of the terms used, and we think it may be safely said that the words, at the time the statute was adopted, had a well-known legal meaning. But aside from this view of the question it seems to be well settled by decisions of courts that vacation when used in reference to courts is that time between the end or final adjournment of a term and the beginning of another. In Mechanics' Bank of Alexander v. Withers, 6 Wheat. 106, where the regular term began on the third Monday in April and continued until the 16th of May, when it adjourned to the fourth Monday of June, it was held that the adjournment from the 16th of May to the fourth Monday in June was but a continuation of the April term. The same doctrine was announced in Commonwealth v. Sessions of Norfolk, 5 Mass. 436, where it is said: 'It is well understood by the people generally that a court holden by adjournment is not a new term but a continuance of the former term of court, and it is not infrequent for courts of sessions to adjourn for the accommodation of persons having business in it.' In Leil v. Commonwealth, 9 Wall. 200, it was held that a day to which a court was adjourned is a part of the same term at which the adjournment was made. In Sanger v. Bryson, 10 Kans. 200 it was held that an adjourned term of court is in no proper sense an independent distinct term, but merely a prolongation a continuance of that already begun. In Smith v. Smith, 17 Ind. 75, an adjourned term was neld to be a part of the regular term. Under § 35 of ch. 37, R. L. 1874, the Circuit judge had authority to adjourn from day to day or to any day not beyond the first day of the next term of court, and the adjournment shown by the record was authorized by this statute. But we are satisfied that the adjournment from December 27 to January 29 did not close the term, nor was the interim a vacation within the meaning of the statute. The interim could not be vacation, as the fall term of court had not ended, no final adjournment of the term had taken place, and hence vacation had not commenced. If there was a vacation here, and the clerk authorized to act because the court had ad-925, we find the following oath: "Name I to witness journed for a period of thirty-two days, for the same reason and upon the same principle he might act if the adjournment was but for ten days or one day, or even one hour. We do not think the statute will bear such a construction." ΜΕ THE ABOLITION OF OATHS. amples of kings swearing by their sceptres. Some Thus in form and character oaths have varied from the delicate form of the oath of the boyish Rosalind, who swore "by my troth,and in good earnest, and so God mend me, and all pretty oaths that are not dangerous;" to the terrible form of the oath that is to-day so frequently administered in an irreverent and flippant manner, "So help me God." The expression "So help me God" has been traced by some writers to the Roman oath, "Ita me adjuvet Deus," or the French, “Ce n' ait Diex." Others have claimed for it, as well as for the Italian and French oaths above referred to, a Teutonic derivation. In the Scandinavian saga of Ulfliot, of the date of that I take oath by the mighty law oath, so help me Frey, and Niördh, and Almighty Thor, as I shall this suit follow or defend or witness bear, or verdict or doom as I wit, rightest and soothest, and most lawfully." From this a Scandinavian derivation is claimed for the phrase. Whatever may have been its origin, this we know: that it was in very early use in England, and in form hardly different from the form in which it is to-day administered. What does this signify, if it signifies any thing? "So help me God!" Some have held that it is only a prayer to the Deity that He will assist the witness or jurator in speaking the truth. This explanation hardly seems adequate. EN are by nature conservative. The principle upon which a Chinaman persists in using wooden ploughs, because what was good enough for his forefathers must be good enough for him, is the same principle that influences all of us more or less. We urge reform, we promise reform, but we hesitate to executegiance to the Deity, and to the fact that He will visit reform when the change is radical. The idea and general theory of an oath is that the attention of the one thus swearing is called to his alle the perjurer with dire punishment in the after life; and "So help me God" is then a prayer that the jurator makes that, if he speaks not the truth, it is his desire that Almighty God may condemn him to eternal misery. It is a species of contract into which he forces his Maker. If we adopt the theological distinction between a venial and mortal sin this exclamation is the announcement of belief on the part of the witness that perjury is a mortal sin. Such is the awful meaning of this phrase. How then is it employed? In the solemn manner in which it was intended to be administered? How many men, even among Christians, stop and consider the terrible import of this oath? The vigorous old writer, Jeremy Bentham, employs language in respect to this that seems aimost irreverent, but which he uttered no doubt in the most respectful manner. The modern oath makes "man the legislator and judge, God the sheriff and executioner, man the despot, God his slave." THE INUTILITY OF OATHS. Let us now consider the utility of oaths as administered to witnesses: The object to be gained by an oath is the truth. In the examination of this phase of the subject the question arises, what are the primary incentives to truth? These are four in number · natural, social, religious and penal. It is easier to speak the truth than tell a lie. One is a simple act of memory; the other requires the power of invention, and, in order that we may escape detection, a very careful exercise of that power. It has been said that the same arguments would tend to impede the discovery of the whole truth, because of the imperfection of human memory. This criticism is not perfectly true, owing to the difficulties of sustaining all the secondary falsehoods that follow as a natural consequence from the first untruth. The second incentive to truth is the social sanction. The falsifier of the truth and bearer of false witness is viewed with contempt by all classes. "There is honor among thieves" is an old proverb. No matter how low down in the social scale a man may be, he respects the truth in his fellow men, and views falsehood with loathing and disgust. The third incentive is the religious sanction; the feeling that we will be judged by our Maker if we bear false witness. | For ilka passion, sir, even a passion for a bead or a button, is as strong as Sampson burstin' the withies. But imagination can bind, for she ca's on her flamin' ministers, the fears they palsy strike the arm that would disobey the pledged lips, and thus oaths are dreadfu' as Erebus and the gates o' hell." How can the State justify itself in appealing to the superstitious of the witness? You reply it does not do it; it appeals to the conscience of the witness. Then what right has the State to appeal to the religious scruples of the witness, and enforce its commands by spiritual penalties? There was a time when the church enforced its spiritual obligations and beliefs by temporal punishment; but this is now viewed as a past barbarism; and we blush whenever we consider that such deeds were done in the name of religion. "Why then," says a writer in the Fortnightly Review, are we slow to recognize the corresponding truth that secular obligations cannot be enforced by spiritual terrorism ?" I will not attempt to answer these questions, but will pass to the consideration of the inquiry whether this appeal to man's conscience has the desired effect. The university oath, recently abolished in England, bound every student who entered the university to obedience to all the statutes and laws of the same. The statute books were full of obsolete, unrepealed laws, some of them ridiculous in their character, as for example, the law of Oxford, that Latin should always be spoken at table. None of the students who took the oath ever intended to keep it. There was the same appeal to the conscience in that case as in the case of a witness to-day in a court of justice, and yet because the natural, social and penal incentives were wanting the matriculating students carelessly swore that which they never meant to perform; and for this reason the majority of the curates of the Church of England are to-day foresworn. It is the spirit, not the letter of the law, to which we should adhere, you reply. What is the spirit of the law? Must each one decide for himself? Should the spirit of casuistry enter into such a solemn appeal to the Deity? Let us take another example, that of the oath of allegiance. It is related that Talleyrand swore thirteen times to his allegiance under various governments. Why then is not the appeal to the conscience of man successful in these cases? Evidently because The fourth incentive may be called the legal sanction, or the penal incentive. It is the fear of punish-the social and penal incentives are wanting. ment if we testify falsely. Oaths, I have said, are administered to secure the truth in its purity. Let us examine their application in the foregoing cases. They do not intensify the first or natural incentive. In the second case a man is viewed with contempt by his neighbors, not because he breaks an oath, but because he commit a sin against society, and thereby an injury to his fellow men. The fourth, the penal incentive, may be administered as well-nay, better, without an oath, than by means of one, as we will subsequently show. The administration of oaths then has for its object the intensification of the religious sanction, and of that alone. There are, says Max Muller, three kinds of wit nesses: First. Those who will speak the truth under all circumstances. Second. Those who will, to attain their selfish purposes, lie whether sworn or not. Third. Those who would lie if not bound by an oath, but speak the truth when sworn. To the last class we must confine our considerations. Hogg, in Noctes Ambrosianæ, thus speaks of an oath: "The power o' an oath lies, no in reason, but in the imagination. Reason tells us that simple affirmation or denial should be aneuch atween man and man, but reason canna bind, or if she do passion snaps the chain. According to the old English formula, every attorney upon being admitted, swore that "he would doe no falsehood, nor consent to any to be done in the court, and if he knew of any to be done he would give knowledge thereof unto his lord chief justice, or other his brethren, that it might be reformed; that he would delay no man for lucre or malice; would increase no fees, but would be contented with the old fees accustomed; would plead no foreign plea, etc., and would not wittingly nor willingly sue, nor procure to be sued any false suit, nor give aide nor consent to the same. Will any one claim that the standard of the bar was elevated by these oaths? The penal incentive to keeping them was wanting, and so they were hurriedly taken and then forgotten. This oath calls to mind the celebrated "et caetera oath" of 1640, which bound men to conform to the doctrines of the Established Church of England, and never to alter their opinions in regard to them. This oath, said "Sunset" Cox, recently in the House of Representatives, "led, as most oaths lead, to subterfuges, and reservations, prevarications and perjury. It raised up Baxter in religion and Pym in Parliament, and lost to the English church two thousand of its best ministers." For another example consider the ridiculous enforcement of an oath in the case of custom house dec larations. The social and peual incentives are wanting, and false oaths may be taken with impunity, and so the custom's officials knowing this make a mockery of the ceremony, and in many cases the notary takes the word of a custom house broker, that the witness has said, that he swears to the declaration, and upon this information alone, illegally signs the jurat. I do not desire to be accused of denying that the religious sanction of an oath does influence many people; but I do claim that it influences only those men who are religious, and whose word is truth. In all other cases if you remove the sanction of society to the truth, and the fear of punishment if false swearing is committed the influence of the appeal to the conscience of the man is naught. It is self evident that the administration of the oath resolves itself into an act of supreme folly unless the witness believes in future punishment. The courts and legislative bodies found that the old law, whereby the testimony of an atheist could not be received in evidence, tended to defeat the ends of justice, and allowed any man, who wished to avoid being a witness, an opportunity of so doing by declaring himself an unbeliever; and so, in some instances the restriction that an atheist shall not be received as a witness has been done away with, in all other cases it is ignored, and no inquiry is made into the religious belief of the witness. In the cases of Quakers, and any one who has conscientious scruples about taking an oath the administration of an oath may be omitted, and the witness may simply declare or affirm. The inadmissibility of the testimony of children, who know not the meaning of an oath is still enforced, and results frequently in a ridiculous parody of justice, as for example an illustration recently appearing in "The Spectator." "James Brace, another small boy, was then called and said he went to church and school. "Corouer. Do they teach you that if you tell a lie you will be punished? Yes. And if you tell a lie who will punish you? The policeman (laughter). But who will punish you hereafter if you tell a lie? No answer. Speak up and do not be afraid. No answer. Don't you know? No. The coroner to the officer: take the book away. The witness' deposition was then taken, and marked as not sworn." It cannot be contended that the testimony of little James Brace, who was ignorant of future punishment is not as good as that of the infidel who denies the existence of future punishment. As an illustration of the fact that the abolition of the oath would not tend to increase false witness may be taken the case of the Quakers, who refuse to swear at all, and whose treaties with the Indians, although the only ones not confirmed by an oath, are, it is claimed, the only treaties that were never violated. Therefore since the natural, the social, the penal, and the religious influence, are not strengthened by the administration of the oath, it is inutile and unnecessary. THE ADMINISTRATION OF OATHS A POSITIVE EVIL. In addition to this the following objections may be urged against the oath: First. The name of the Deity is dishonored, and blasphemed by the contempt, which invariably and necessarily grows out of the familiarity, which we feel toward an oath. Thus we see by an oath, the religious incentive to truth is weakened. Second. The deduction may be drawn from the administration of the oath, that there is a distinction between a man's word and his oath; that the violation of one is a venial sin, of the other a mortal sin; that without the enforcement of the oath, the testimony of a witness cannot be relied upon, but that the general tendency of man is to give false testimony. in this way the social incentive to truth is weakened. Third. The inadequacy of the punishment for perjury, and the non-enforcement of the laws relating thereto tends to increase the crime of perjury. Hallam says that, "Perjury was the dominant crime of the middle ages encouraged by the preposterous rules of compurgation, and by the multitude of oaths in the ecclesiastical laws." Not a day passes but that perjury is unblushingly committed in our courts of justice. The judges know it, and are unable to deny the fact; but owing to the difficulties of conviction, and the inadequacy of the penalties for perjury, they are powerless to prevent it. To secure a conviction for perjury, the testimony in the first place must have been material, and tended to establish the issue in dispute. This draws a distinction between the truth in regard to immaterial and material testimony, which is false. False witness is false witness, and in every case should be punished. In the next place the oath must have been administered before an officer authorized by law to administer oaths. Take as au example of this point, the acquittal of Case, who was tried on the charge of perjury. In his case, the false affidavit was signed by Case and then sent to the notary, who without properly administering the oath affixed his "jurat." This was held by the Court of Appeals not to constitute perjury. Thus by negligence, due either to recklessness or to criminal intention, the ends of justice were defeated. In many ways, the penal incentive to the truth, may be and is weakened by the administration of an oath. Thus it happens, as Lord Selden once said, that men consider that "oaths are like pills, not chewed but swallowed." HOW TO ENFORCE THE TRUTH. The crime of perjury, so terribly prevalent to-day, must be checked. How then can this be done? My answer is, by increasing its punishment to that of a crime of the first magnitude. Punish the giving of false testimony in a murder trial, by punishment equal to that inflicted in the case of the crime of manslaughter. Graduate the penalties in other cases in proportion to the injury and wrong thereby perpetrated against the rights of society. It would be well in order to accomplish this end to allow the judge great discretion in deciding upon the severity of the sentence. Lastly and most important of all, rigidly enforce the laws. In this way by increasing the penal incentive to the truth, the attention of society would be called to the enormity of the crime and the social incentive would also be strengthened. In referring at some length to the inutility of oaths in courts of justice, and to the fact that what we should punish by temporal punishment is the sin against and injury to society and not the insult to the Deity, I have incidentally referred to other oaths. The university oath has recently been abolished in England. The oath of allegiance is a farcical procedure. In the event of revolutions the new government has never had any difficulty in forcing this oath upon the inhabitants. I have referred to the case of Talleyrand who swore thirteen times to his allegiance under various governments. Men excuse their consciences in such cases by arguing either that the oath was taken under duress, or that the government by its tyranny released them from their obligations. These arguments are very specious and sophistical. Every man who takes an oath of allegiance takes it with certain mental reservations. In addition to this, if this oath is administered by a tyrant, or by a despot, inasmuch as an oath is a bond created between a man and his Maker, the jurator forces the Deity into the false position of upholding the principles of despotism, by punishing him if he fails to keep his word by allegiance to the government. The test oaths of England have all been simplified, and the oath of allegiance is administered to-day upon officers few in numbers as compared with the ages gone by. Allegiance is not strengthened by test oaths, but should be retained by a nation by the promotion of a spirit of love toward it. Treason should, as it is, be punished as one of the basest of crimes. The custom house oaths have been abolished in England, and false declarations are rigidly punished. This should be so in this country, Oaths of office signify but little. Officials should be kept to a strict and conscientious performance of their duties, by rigid laws against the abuses of official trusts. Certificates would be more effective than affidavits in the case of the declarations of the officers of banks and corporations regarding the solvency of their institutions; and a severe penalty should be imposed upon a certification willfully or negligently false. An effort is now being made in Spain by Castellar to abolish all oaths. Mareill said to the princes of his day: "Never swear at all, neither to be believed, nor to be feared. You will be believed and respected soon enough without consenting to use oaths, those feeble aids, monsters which impiety and lying have produced." Let us abolish then these appeals to superstition and conscience and punish the infraction of our duties toward our fellow men, as sins and offenses against society. Let not the State attempt to interfere with the relation of man to God. Let false testimony, and not the infraction of an oath, be the crime. In this way the ends of justice and Christianity will be the better subserved. "Truth is mighty, and will prevail." NEW YORK. LOUIS CLAUDE WHITON. THE PRESUMPTION OF LIFE. RULE I. Love of life is presumed (a), and a person proved to have been alive at a former time is presumed to be alive at the present time (1) until his death is proved or a presumption of death arises. (b.) ILLUSTRATIONS. (A.) 1. H. is found dead. An examination reveals that his death was caused by taking arsenic. H.'s life is insured, and the question arises whether his death was caused by suicide or accident. The presumption is that it was caused by the latter.(2) 2. W. is killed by a railroad engine. The question is whether W. could or could not have escaped the peril if he had desired to. The presumption is that he could not.(3) (1) King v. Fowler, 11 Pick. 302 (1831); Innis v. Campfield, 1 Rawl. 375 (1829); Fulweiler v. Baugher, 15 S. & R. 45 (1826); Pennefather v. Pennefather, Irish Rep.,6 Eq.171 (1872); O'Gara v. Eisenlohr, 38 N. Y. 296 (1868); Battin v. Bigelow, 1 Pet. C. C. 453 (1817); Hall v. Com. Harden, Ky., 480 (1808). (2) Guardian Life Ins. Co. v. Hogan, 80 Ill. 35 (1875). (3) Way v. Illinois Central R. Co., 40 Ia. 342 (1875); Morrison v. New York Cent. R. Co., 63 N. Y. 643 (1875). 3. A. is found drowned. The presumption is that the drowning was accidental.(4) In case 1 it was laid down that where there is the occurrence of death merely, and no evidence upon the subject, the presumption is that it was from natural causes, and not an act of self-destruction. This presumption prevails in the absence of proof or in cases where the evidence on the point is equally balanced. In case 2 the instincts prompting the preservation of life were said to be properly thrown into the scale of evidence, like the presumptions of sanity and inno cence. In case 3 it was said: "The party alleging suicide must prove it. The mere fact of death in an unknown manner creates no legal presumption of suicide. Upon evenly balanced testimony the law assumes innocence rather than crime. Preponderating evidence is necessary to establish the latter." (B.) 1. In 1831 the State of Georgia granted a tract of land to one T., who had been a soldier in the revolutionary war. In an action brought in 1857 there is no presumption that T. is dead at this last date.(5) 2. A., an infant, and his father executed a deed binding A. to C. for a term of years. Subsequently the infant brought an action on the deed. There was no proof that the father was alive at this time. The presumption of law was that C. was alive.(6) 3. A patent of land is produced granted to O. in 1695. It cannot be presumed that O. was not alive in 1773.(7) 4. It is shown in 1843 that H., whose deposition in a case was taken in 1822, was then fifty-nine years old, and in bad health. He lived then in New York city. He is not shown to have ever left there, but his address is not now (1843)known at the post-office, nor is it in the city directory. There is no presumption that H. is now (1843) dead. (8) 5. In an action on a recognizance given by M., the plea was that since its execution M. had died. The burden of proving the death of M. was on the defendant.(9) 6. J. R. T., a young sailor, was last seen in the summer of 1840 going to Portsmouth to embark on board ship. He was not subsequently seen. His grandmother died in March, 1841. The presumption was that he survived his grandmother. (10) 7. In 1732 a deposition of a witness made in 1682 is offered. There being no proof that the witness is dead, the presumption is that he is still alive, and the deposition is inadmissible. (11) 8. A. was shown in a case tried in 1837 to have been alive in the year 1834. The law will not infer that A. is dead without some evidence.(12) In case III the court said: "The death of a person may be presumed after a long lapse of time, without attempting to say what that time was. But on the other hand, it laid it down that 'when persons are known to have survived ninety and one hundred years we cannot say that others have died at an earlier age without some evidence on the subject.'" In a subsequent case in the same State (13) the court was equally contradictory. "Though there is no legal presumption of the period when death occurred or up to which life endured," (4) Continental Ins. Co. v. Delpeuch, 82 Penn. St. 235 (1876). (5) Watson v. Tindall, 24 Ga. 494 (1858) (6) Letts v. Brooks, Hill & Denio, 36 (1842). (12) Atkins v. Warrington, Best Ev. 412; Chitty Pldg. 616. (13) Sprigg v. Moale, 28 Md. 506 (1868). said Alvey, J., "yet it may be presumed that Jacob Giles died before the bringing of this suit, because it would be contrary to the ordinary course of nature that he should be living at that time." It nowhere appears in the opinion at what date the suit was instituted. John Giles, the father of Jacob, died in 1725; he had eight children, of whom Jacob was the second. In 1732 Jacob made a deed of the land in controversy. Alvey, J., delivered the judgment in which these views were expressed in the year 1868. (14) In case 4 Mr. Justice Baldwin said: "The life of a person once shown to exist is intended to continue till the contrary be proved, or is to be presumed from the nature of the case. Direct proof is not here offered. Are the facts which are shown sufficient to supply its place? The witness, if alive, is eighty years old; an age that we may admit is an advanced one; but is yet one to which life is occasionally-nay, not unfrequently prolonged. The court cannot therefore presume, as of course, that Hall has not reached it. Lord Hale has indeed said that it shall be presumed life will not exceed ninety-nine years(15), and it may be inferred that a man, if of any age already, will not live eighty years besides(16); but Chief Baron Reynolds refused to presume a witness dead who had been examined sixty years before, there having been no proper searches or inquiry made after him. Neither does the circumstance that the witness was in bad health in 1822 infer, as necessary consequence, that he is now dead. The difficulty is here-that the expression 'bad health' is indeterminate. There are manifold sorts of bad health, and many degrees in most of them. Show me that Hall was the subject of some quick, consuming disease, or of any specific malady at all, and you will change the case. Suppose that his 'bad health' was temporary, or that the expression means only that his health was not robust. A man in bad health at one time may recover afterward; that depends entirely upon the nature of his disorder and mode of treatment and vigor of his constitution. And the valetudinarian often prolongs an existence beyond him, who in the carelessness of health, may be suddenly cut down. In the case cited from 13 Vesey(17) the health was very bad(the chancellor speaks of it as desperate),' and the man was to have been heard of six months after he * * went away, several years before. * Is the case essentially changed by the inquiries made at the postoffice? This difficulty occurs-that there is nothing to show that H. was a person likely to be known there; that he was in the habit of receiving letters, or that he was a person of any note or consequence. It is no presumption of law that the runners at the post-office know, so as to answer at first inquiry, the name and residence of every person in a populous city. Remarks of a similar sort apply to the inference which would be drawn from the absence of the name from the directory. Indeed in the insignificance of advanced old age, a man has generally ceased to make impression on the busy world or to be enrolled on the register of its active concerns. It seems to me difficult to suppose that direct evidence cannot be given of a death, which if it has occurred, has occurred close to us, and since 1822. Or did H. ever lease the place of his former residence? Let this fact be shown, and that his friends have not heard of him for seven years. Had he no friends-let that fact be shown. The difficulty is that the plaintiff does not show that he has made proper search or inquiry for H. Had he done this, and been unable to hear any thing of the person, I should be of opinion to receive the testimony. But there is a mea(14) And see Jarboe v. McAtee, 7 B. Monr. 282 (1847). (15) Weale v. Lomer, Pollex. 55. (16) Napper v. Saunders, Hutton, 118; Keeble's Case, Littleton, 370. (17) Webster v. Buchmore. gerness about all this part of the case which is unsatisfactory, to use no harsher adjective. It shuts up the access to presumption, which would have otherwise been easy. In short, I see nothing in any of the circumstances shown, nor in all of them together, which, in the absence of proper inquiry, brings that weight and conclusiveness which ought to exist before you set aside a wise and deep-laid rule of law." In case 5 Lord Ellenborough said he relied on the earlier case of Throgmorton v. Walton(18), where it was decided that where the issue is upon the life or death of a person once shown to be living, the proof of the fact lies on the party who asserts the death; for that the presumption is that the party continues alive until the contrary is shown. In a New York case it was said: "There is nothing in the point raised on the part of the defendant that the trustees are to be presumed dead from the lapse of time since they were heard from. The rule is that the proof of the death of a person known to be once living is incumbent upon the party who asserts his death; for it is presumed that he still lives until the contrary be proved. The presumption of death from any lapse of time which the evidence in this case could justify, would only apply where the individual alleged to be dead has left the place of his domicile, and had not been heard of for seven years or more. No such proof was given or offered in the present case."(19) RULE II. Death may be proved by reputation, by hearsay, or by evidence of facts inconsistent with the theory of the existence of life.(20) ILLUSTRATIONS. 1. The question in 1869 is whether H., who was alive in 1845, is dead. Acquaintances testify that his death, in 1845, was announced in the newspapers, and that his friends spoke of him as being dead. This overturns the presumption that he is alive. (21) 2. K. was married in 1719, and had six children. It was proved that inquiry had been made where information of them would naturally be obtained, and no account of five of them could be had. This was held sufficient, seventy years having elapsed, to justify the inference that they were dead without lawful issue. (22) 3. Forty-eight years before, a conveyance was made to one C. by order of court. No claim had since been inade by parties, who if living, would be entitled. The presumption is that they were dead.(23) RULE III. One who is proved to have been unmarried when last known to be alive will be presumed to have died childless; but it is otherwise where he or she was married when last known to be alive.(24) ILLUSTRATIONS. 1. W. emigrated from Australia to Ireland in 1854, and continues to communicate with his relatives in (18) 2 Rolle, 461. (19) Duke of Cumberland v. Graves, 9 Barb. 608 (1850). (20) Anderson v. Parker, 6 Cal. 197 (1856); Jackson v. Etz, 5 Cow. 319 (1826); Scheel v. Eidman, 77 III. 304 (1875); Bailey v. Bailey, 36 Mich. 185 (1877); John Hancock Ins. Co. v. Moore, 34 Mich. 41 (1876); Crouch v. Eveleth, 15 Mass. 305 (1818); Ruloff v. People, 18 N. Y. 129 (1858). (21) Ringhouse v. Keever, 49 III. 470 (1869). (22) King v. Fowler, 11 Pick. 302 (1831). (23) Allen v. Lyons, 2 Wash. Co. 475 (1811); Thomas v. Visitors of Frederick Co. School, 7 Gill. & J. 385 (1835). (24) McComb v. Wright, 5 Johns. Ch. 263 (1821); Hammond v. Inloes, 4 Md. 140 (1853); Stinchfield v. Emerson, 52 Me. 465 (1864); Peterkin v. Inloes, 4 Md. 175 (1853); Sprigg v. Moale, 28 id. 506 (1868); Emerson v. White, 29 N. H. 482 (1854); Oldnall v. Deakin, 3 C. & P. 404 (1828); Banning v. Griffin, 15 East. 293; Richards v.Richards, id. 294 (1812); Oldham v. Wolley, 8 B.& C. 22 (1828); Dunn v. Snowden, 32 L. J. (Ch.) 104 (1862); Hayes v. Tribbles, 3 B. Monr. 109 (1842). |