presumption, however, extends merely to the fact of death from and after the end of the period; it is not understood to specify anything further, for example, the time of death within that period, or the celibate or childless condition of the person at the time.5 On similar considerations of experience, the loss of a ship, in insurance cases or the like, may become the subject of a presumption or a prima facie ruling, after a long absence from port without news.6 Moreover, there is a distinct presumption of death from lapse of lifetime, - not reducible to a fixed period, but exempt from any requirement as to absence from home or lack of news.7 supposed deceased afterwards returned alive); 1902, Fidelity Mutual L. Ass'n v. Mettler, 185 id. 308, 22 Sup. 662; Va. Code 1887, § 3373 (the departure from the State and failure to return within seven successive years, by a person residing in the State, raises a presumption of death); W. Va. Code 1891, c. 130, § 44 (like the Virginia statute); 1898, Boggs v. Harper, 45 W. Va. 554, 31 S. E. 943; 1900, Wisconsin Trust Co. v. Wisconsin M. & F. I. Co. Bank, 105 Wis. 464, 81 N. W. 642. 1837, Nepean v. Knight, 2 M. & W. 894 (ejectment, for property held by long adverse possession, the plaintiff claiming under M. K. ; the question being whether the plaintiff's lessor had begun the action, under St. & 4 W. IV, c. 27, within twenty years since his right accrued, i. e. since the death of M. K., it was held that the plaintiff had the burden of evidencing this; M. K. having gone to America in 1806 or 1807, and being last heard from by a letter received in May, 1807, and the suit having been begun on Jan. 18, 1834, less than seventeen years later, it was held that there was no presumption that M. K. died not before the end of the seven years, or died at any specific time; and that the plaintiff's burden had therefore not been sustained); 1880, Corbishley's Trusts, L. R. 14 Ch. D. 846; 1902, Re Benjamin, Ch. 723; 1848, Doe v. Strong, 4 U. Č. Q. B. 510, 518, 8 id. 291 (good opinions); 1897, Schaub v. Griffin, 84 Md. 557, 36 Atl. 443 (property went by S.'s will in remainder to his four children; one of them C., married K., and had a son, who disappeared in 1881, C. dying in 1888; C.'s administrator was sued by the other three children for her share, their inheritance depending on whether her son predeceased her; held, that the burden of showing his predecease rested on the plaintiffs, a part of whose case it was; that the seven years' presumption had not begun to operate; and that, thus there was no aid to be had from it in determining that the son had died at any particular time, so that the duty of producing evidence of survival did not shift to the defendant); 1878, Davie v. Briggs, 97 U. S. 628, 634 (leading opinion, by Harlan, J.). So, also, in an action for death by wrongful act, the burden of showing the death to have been within the statutory period in said to be on the claimant 1903, Poff v. N. E. Tel. & Teleg. Co., N. H. 55 Atl. 891. 5 1812, Doe v. Griffin, 15 East 293 (eject ment; the plaintiff's lessor, who claimed through the same collateral ancestor as the defendant, was held to have the burden of proving that the ancestor had died without issue, but was held to have placed upon the defendant the duty of going forward by evidence that the ancestor had never been heard of as married); 1897, Still v. Hutto, 48 S. C. 415, 26 S. E. 713 (no presumption that a man, unmarried when last heard from, died childless). 6 1777, Green v. Brown, 2 Str. 1199 (insurance; a ship sailing to America in 1739 had never been heard from; the defendant objected "that as captures and seizures were excepted" from the policy, "it lay upon the assured to prove the loss happened in the particular manner declared on," i. e. by foundering; but "the Chief Justice said it would be unreasonable to expect certain evidence of such a loss," and left it to the jury); 1809, Twemlowe v. Oswin, 2 Camp. 85 (insurance; a ship sailing from Liverpool April 14, 1807, to the Gulf of St. Lawrence and thence to Hayti; evidence that she had not been heard from up to March 1, 1809, was admitted, but held not sufficient); 1815, Watson v. King, 1 Stark. 121 (trover; a ship carrying M., one of the owners, last seen in a hurricane on March 7, 1814, near Jamaica, sailing from England; several others of the fleet foundered, and this one had never been heard from up to Dec. 14, 1815; Ellenborough, L. C. J., told the jury it might be assumed that at that time M. was dead; but that it was for their consideration whether he was dead on the 8th of June, 1814," when his share of the ship was sold); 1816, Houstman v. Thornton, Holt N. P. 242 (insurance a ship leaving Havana in August, 1815, bound to Holland or Flanders; up to Easter, 1816, she had not been heard from; Gibbs, C. J., 66 There is no fixed rule of law upon this subject"; and he left the case to the jury, expressing an opinion that the ship was lost); 1826, Koster v. Reed, 6 B. & C. 19 (insurance; a ship sailing from Leghorn to Lisbon in April, 1821 ; evidence that she never arrived; held, that the fact that she had been rumored of as foundered was equivalent to "never having been heard of," and that in any case there was sufficient evidence to go to the jury). 71901, Young v. Shulenberg, 165 N. Y. 385, 59 N. E. 135 (a person acknowledging a deed in 1817, presumed dead). In evidencing the lack of news, under the § 2532. Same: Survivorship. Where two or more persons have perished in the same calamity, there is no presumption of law that either survived the other, or that all perished at the same time.1 The burden of proving that one survived another will commonly be on any claimant for whom that fact is essential to his own chain of title.2 If there is evidence, from the age, sex, or physical condition of the persons who perished, or from the nature of the accident and the manner of death of the parties, which tends to show that some one did in fact survive the others, the whole question is one of fact, to be decided in each case by the jury, according to the incidence of the first burden of proof (ante, § 2485); but without any rule of presumption. But in escaping the artificial rules prescribed by the Continental law, and by a few of our own Codes,3 our Courts have left many difficulties unsolved, and have created new artificialities capable of doing inordinate violence to a testator's intentions. For example, the supposed logic which has sometimes permitted the identical devisee of two co-perishing testators to be, after all, judicially deprived of the estate is as unnecessary in legal principle as it is shocking to good sense; and a fairer solution for this frequent problem is a present desideratum in the law.5 $2533. Seaworthiness. In actions on insurance policies, the insurer will usually have the first burden of proof (ante, § 2485) of the unseaworthiness of the vessel, though the circumstances of the loss may afford prima facie evidence (ante, § 2494), or even raise a presumption, of the fact of unseaworthiness. Yet there may be issues in which the vessel-owner will have the first burden of proof of seaworthiness.2 above rules, the use of rumors or reports, or their absence, is not a violation of the Hearsay rule: 1858, State v. Wentworth, 37 N. H. 217 (the fact that on inquiry no one in a certain neigborhood knew of a man whose existence was material); and cases cited ante, § 1789; the doubt expressed in Nehring v. McMurrian, 1900, 94 Tex. 45, 57 S. W. 943, was unnecessary. 1 1860, Wing v. Angrave, 8 H. L. C. 183; 1866, Hartshorne v. Wilkins, 6 N. Sc. 276; 1902, Middeke v. Balder, 198 Ill. 590, 64 N. E. 1002 (collecting cases); 1897, Schaub v. Griffin, 84 Md. 557, 36 Atl. 443; 1878, Newell v. Nichols, 75 N. Y. 78; 1897, Re Wilbor, 20 R. I. 126, 37 Atl. 634, 51 L. R. A. 863; 1903, Young Women's Christian Home v. French, 187 U. S. 401, 23 Sup. 184. 2 The various classes of cases, and the special modifications of principle, have been elaborately treated by Professor C. B. Whittier, in an article which makes further examination of them here unnecessary: "Problems of Survivorship," 1904, Green Bag, XVI, 237; the precedents are there fully collected. mendable instance of a refusal to accept such a result. In view of these sinister possibilities of judicial decision, and of the contingencies created by the transmarine voyage annually taken by thousands of families, it may be suggested that the only safe form of will, for a married pair having identical testamentary wishes, must consist in a devise to a trustee, in trust, first, to accumulate the income for six months, next, to transfer the estate to the wife (or husband) if living at the expiration of the six months, and next, if not then appearing to be living, to the desired secondary devisees. 1 1878, Pickup v. Thames Ins. Co., L. R. 3 Q. B. D. 594 (insurance policy; a direction to the jury that a speedy return to port would shift the burden of proof by raising a presumption, held improper; "as a matter of reasoning and inference" only, the jury might so conclude); 1900, Allan v. Morrison, App. Cas. 362; 1893, Broadnax v. R. Co., 157 Pa. 140, 150, 27 Atl. 412 (the burden of persuasion is on the party affirming unseaworthiness; speedy return to port, etc., raises a presumption thereof). 2 1894, The Edwin I. Morrison, 153 U. S. 199, 210, 14 Sup. 823 (action for goods lost, on a warranty of seaworthiness; the burden is on the owner to prove seaworthiness). § 2534. Regularity: (1) Performance of Official Duty and Regularity of Proceedings. The general experience that a rule of official duty, or a requirement of legal conditions, is fulfilled by those upon whom it is incumbent. has given rise occasionally to a presumption of due performance. This presumption is more often mentioned than enforced; and its scope as a real presumption is indefinite and hardly capable of reduction to rules. It may be said that most of the instances of its application are found attended by several conditions; first, that the matter is more or less in the past, and incapable of easily procured evidence; secondly, that it involves a mere formality, or detail of required procedure, in the routine of a litigation or of a public officer's action; next, that it involves to some extent the security of apparently vested rights, so that the presumption will serve to prevent an unwholesome uncertainty; and, finally, that the circumstances of the particular case add some element of probability.1 The same principle has sometimes been extended to acts which ought to have been done by a private person in the course of business; but this seems unlikely to be common. Furthermore, it has been often extended to include the truth of an official certificate or other assertion; but although 1 The following are illustrations: Cal. C. C. P. 1872, § 1963, par. 15; 1893, American M. Co. v. Hill, 92 Ga. 297, 18 S. E. 425 (a verdict as the foundation of a judgment, the minutes being lost; regularity presumed); 1840, Eyman v. People, 6 Ill. 4, 8 (use and recognition of a highway; presumed duly laid out); 1840, Nealy v. Brown, ib. 10, 13 (same); 1875, Goldie v. McDonald, 78 id. 605, 607 (defendant's residence in the county, as affecting service of process, presumed); 1827, Hathaway v. Clark, 5 Pick. 490 (notice of adjudication of insanity, not presumed, the record of it being lacking and the papers apparently entire); 1893, State v. Lord, 118 Mo. 1, 23 S. W. 764 (regularity of an indictment, presumed); 1894, State v. Hoyt, 123 id. 348, 355, 27 S. W. 382 (correctness of a tax-bill, presumed); 1895, State v. David, 131 id. 380, 33 S. W. 28 (coroner's mode of taking a deposition; regularity presumed); 1896, Green v. Barker, 47 Nebr. 934, 66 N. W. 1632 (chairman of a city board of trustees; his duty as to matters preceding a conveyance, presumed done); 1826, Bishop v. Cone, 3 N. H. 513, 516 (legality of a town meeting, presumed); 1895, Fisher v. Kaufman, 170 Pa. 444, 33 Atl. 137 (correctness of an old survey in a land-office, presumed); 1895, Altoona v. Bowman, 171 id. 307, 33 Atl. 187 (a requirement that municipal ordinances shall not be passed to enactment on the day of introduction or reporting; regularity not presumed); 1896, Harkrader v. Carroll, 76 Fed. 474 (proceedings of the landoffice in issuing a patent, presumed); 1901, New River Mineral Co. v. Roanoke C. & C. Co., 49 C. C. A. 78, 110 Fed. 343 (that an undated sheriff's return was made within the due period, presumed). The regularity of a tax-title has been a frequent field of controversy under this presumption, depending more or less on the requirements of the local statute: 1894, Clarke v. Mead, 102 Cal. 517, 519, 36 Pac. 862 (tax-deed; presumption made by statutes of regularity of steps in prior proceeding); 1826, Waldron v. Tuttle, 3 N. H. 340, 344 ("Very few of those sales have been found to be legal; the presumption is in fact against their validity; . . . in all cases enough of the proceedings should be shown to render it not improbable that the proceedings may have been regular," and this, with possession, may suffice); 1889, Blackwell, Tax Titles, 5th ed., §§ 1098, 1140. 21802, Ellenborough, L. C. J., in Williams v. E. I. Co., 3 East 199 ("Where any act is required to be done on the one part, so that the party neglecting it would be guilty of a criminal neglect of duty in not having done it, the law presumes the affirmative, and throws the burthen of proving the contrary - that is, in such case, of proving a negative on the other side "; here, in an action by a ship-owner against a charterer for placing an explosive on board with. out notice, the burden was placed on the plaintiff to show the defendant's failure to give notice). 3 1885, Patterson v. Collier, 75 Ga. 419, 428 (an executive certificate that a person is not justice of the peace is "conclusive," "without rebutting evidence "); 1898, Peyton v. Morgan Park, 172 Ill. 102, 49 N. E. 1002 (the commissioners' certificate of benefit under Rev. St. 1874, c. 24, § 147, raises a presumption); 1896, Albany Co. S. Bank v. McCarty, 149 N. Y. 71, 43 N. E. 427 (a certificate of acknowledgment creates a presumption, under C. C. P. § 935, when nothing more is offered, of the truth of the facts stated; when disputed by evidence, the jury is to decide; here the question was whether the deeds were in fact signed or executed; the opinion collects the cases); 1898, Rogers v. Pell, 154 id. 518, 49 N. E. 75 (a certificate of acknowl this consideration serves in part to justify for such statements the exception to the Hearsay rule (ante, § 1630), it is only occasionally (as in a certificate of acknowledgment) that the force of a real presumption can be expected. $2535. Same: (2) Appointment and Authority of Officers; Incorporation. There is a rule of substantive law that for some legal purposes a de facto incumbency of a public office suffices; the de jure appointment would then not be in issue. But supposing that it is, the rule of evidence, requiring production of documentary originals (ante, § 1178), would call for the original document of appointment; unless, under that rule, an exception can be found for them. Such an exception, for reasons already noticed (ante, § 1228), is recognized for many classes of cases.1 Assuming, then, that the de jure incumbency of office by a particular person is to be shown, and that the document of appointment need not be produced, there may then come into play a well recognized presumption of incumbency, based on the person's prior notorious action as such officer. In strictness, there are here two elements, the course of action and its notoriety; but the former alone is commonly mentioned. For public officers, the scope of the presumption depends more or less on the issue of substantive law involved, because other evidence may be demanded where the title to the office is the essence of the controversy; moreover, the rule of the sufficiency in substantive law of a de facto incumbency (above noted) tends to be confused with the present evidential rule of presumption. edgment, on the fact of its venue, goes to the 1 1789, R. v. Gordon, 2 Leach 3d ed. 581 (murder of a constable; production of the appointment not needed); 1805, Kirwan v. Cockburn, 5 Esp. 233 (appointment in the army; the commission itself should be produced); 1883, James v. State, 41 Ark. 451, 453 (road-overseer; production not required); 1881, Hall v. Bishop, 78 Ind. 370, 372 (deputy auditor and assessor; production not required); 1899, State v. Haskins. 109 Ia. 656, 80 N. W. 1063 (production not required). 2 The latter is nearly the same as using a reputation of appointment (ante, § 1626); the former rests on a principle of Relevancy (ante, § 272). Examples are as follows: England: 1791, Berryman v. Wise, 4 T. R. 366 (action of slander by an attorney); 1796, Cross v. Kaye, 6 id. 663 (attorney as defendant); 1826, Pearce v. Whale, 5 B. & Č. 38 (attorney suing for services); 1833, Butler v. Ford, 1 Cr. & M. 662, 669 (police officers); 1835, Cannell v. Curtis, 2 Bing. N. C. 228 (assistant overseer of a parish); 1836, M'Gahey v. Allston, 2 M. & W. 206 (vestry-clerk's Occasionally the rule is action on a bond); 1845, Doe v. Young, 8 Q. B. 4 applied to prove a private authority, but usually only in connection with the authentication of documents (ante, § 2124). By an extension of the principle the due incorporation of a company is often presumed from its course of action as such, together (in some cases) with a notoriety or repute;5 and the statutory admissibility of reputation alone (ante, § 1625) would probably be deemed also to create the force of a presumption. It may be added that many instances, in which this presumption might be brought into question, are otherwise disposed of through the rule of authentication of documents under seal, presuming the incumbency of the sealing ant); 1867, New Portland v. Kingfield, 55 id. 172, 174 (overseers of the poor, furnishing paupersupplies); Mass.: 1862, Webber v. Davis, 5 All. 393, 396 (magistrate); 1871, Com. v. Kane, 108 Mass. 423 (indictment for assault upon a police officer); 1893, Com. v. Wright, 158 id. 149, 157, 33 N. E. 82 (illegal resistance to the police; the person's own testimony to his office, without evidence of public acting; undecided); Mich. 1843, Scott v. D. Y. M. Society, 1 Doug. 119, 152 (reputation and acting, sufficient; here, of judges); Mo.: 1837, Hart v. Robinett, 5 Mo. 11, 16 (constable and deputy; acting is sufficient); 1858, Eads v. Woodbridge, 27 id. 251 (district school trustee; acting is sufficient); 1885, State v. Holcomb, 86 id. 371, 377 (murder of a policeman; action and recognition are sufficient); 1890, State v. Findley, 101 id. 217, 222, 14 S. W. 185 (tax-collector; acting is sufficient); N. H. 1872, State v. Roberts, 52 N. H. 492, 495 (collector of taxes); N. J.: 1798, Gratz v. Wilson, 6 N. J. L. 419, 420 (judge of the Federal Supreme Court); N. Y. 1830, Wilcox v. Smith, 5 Wend. 231, 234 (constable; "there must be some color of an election or appointment, or an exercise of the office, and an acquiescence on the part of the public for a length of time which would afford a strong presumption of at least a colorable election or appointment "); 1831, Ring v. Grout, 7 id. 341, 344 (repute and conduct; applied to schooltrustees; the repute being as to the de facto and not the de jure exercise of office); 1832, McCoy v. Curtice, 9 id. 17 (same); N. C. 1844, Burke v. Elliott, 4 Ired. 355, 359 (besides the de facto exercise, there must be "at least some colourable election and induction into office ab origine, or so long an exercise of the office and acquiescence therein of the public authorities as to afford to the individual citizen a presumption strong" of appointment; here, a constable); Tenn.: 1809, State v. Manley, 1 Overt. 428 (acting is sufficient, except where the officer justifies or sues as such); Tex.: 1902, De Lucenay v. State, Tex. Cr. 68 S. W. 796 (county judge); U. S.: 1819, Sawyer v. Steele, 3 Wash. C. C. 464, 468 (officers of a revenue cutter, suing for penalty; acting as such is sufficient); 1821, Jacob v. U. S., 1 Brockenb. 520, 528 ("acting notoriously" suffices; here, a revenue collector); 1827, Bank v. Dandridge, 12 Wheat. 64, 70 (cashier of the U. S. Bank, acting and recognized as such, assumed to be properly appointed); 1830, Ronkendorff v. Taylor, 4 Pet. 349, 359 (assessors; action under authority is sufficient); Vt.: 1827, Adams v. Jackson, 2 Aik. 145 (constable); 1856, State v. Abbey, 29 Vt. 60, 64 (justice performing a marriage); 1862, Briggs v. Taylor, 35 id. 57, 67 (deputy sheriff); 1898, State v. Taylor, id. 4 39 Atl. 447 (constable making an arrest). 1837, Campbell v. Bank, 2 Ill. 423 (authority of an attorney to give a supersedeas bond); 1871, Druse v. Wheeler, 22 Mich. 439, 444 (trustees of a church, in an action for trespass). Contra: 1853, Bryan v. Walton, 14 Ga. 185, 192 (not applicable to a private trust, e. g. a guardian); 1857, Gilbert v. Boyd, 25 Mo. 27, semble (private trustees; rule not applicable). The following ruling perhaps belongs here: 1898, Baxter v. Camp, 71 Conn. 245, 41 Atl. 803 (whether the defendant's cancellation of his signature to a contract was authorized; his admission of the cancellation, held not to put on him the duty of producing evidence of authority). 5 Compare the cases on judicial notice of charters (post, § 2575); Del.: Rev. St. 1893, c. 107, § 12 (bank's incorporation, provable in criminal proceedings by reputation or by the issuance of notes as a bank); Ill.: 1858, President, etc. of Mendota v. Thompson, 20 Ill. 197 (here a peculiarly strict rule; the production of the charter, and proof of acts done under and in conformity with it, suffices); 1884, Louisville N. A. & C. R. Co. v. Shires, 108 id. 617, 625 (similar); Rev. St. 1874, c. 38, § 486, St. 1889, June 3 (user is to be prima facie evidence of corporate existence, in criminal prosecutions); Mass.: 1876, Merchants' National Bank v. Glendon Co., 120 Mass. 97 (banking corporation, in an action on a note); N. H.: Pub. St. 1891, c. 274, §7 (offences involving counterfeit banknotes; currency of the notes, "or other proof,' is sufficient to show the bank's establishment); Tenn. 1900, State v. Missio, 105 Tenn. 218, 58 S. W. 216 (larceny; example of the doctrine of the sufficiency in substantive law of a de facto corporation); U. S.: 1827, Bank of U. Š. v. Dandridge, 12 Wheat. 64, 71, per Story, J.; Vt. 1834, Barnes v. District, 6 Vt. 388, 393 (organization of a school district, proved by action as such and reputation); Wash.: 1893, Yakima Nat'l Bank v. Knipe, 6 Wash. 348, 350, 33 Pac. 834 (national bank). The incumbency of a corporate officer will sometimes be noticed: 1870, State v. Cleavland, 6 Nev. 181, 185 (forgery); 1827, Bank of U. S. v. Dandridge, 12 Wheat. 64, 70, per Story, J. |