with indirectness, those things which cannot otherwise be expressed with decency; and to this extent, at least, every party is entitled, by the settled rules of pleading, as well as by the reason of the thing, to be informed of that which is to be proved against him. The circumstances and necessary results of the defendant's wrongful act may be shown without this averment; and as to those consequences, which, though natural, did not necessarily follow, they must, as we have seen,1 be specially alleged.2 1 See supra, § 253. 2 See the observations of Mr. Peake, Evid. p. 505, by Norris; Mr. Phillips, 2 Phil. Evid. 180; Id. p. 136, 2d Am. ed.; and Mr. Starkie, 2 Stark. Evid. 815; 1 Chitty on Pl. 412, (7th edit.); Chitty's Precedents, p. 716, note (k); Bull. N. P. 89; Lowden v. Goodrick, Peake's Cas. 46; Pettit v. Addington, Id. 62. DEATH. § 278 a. THE amount of evidence required to establish the fact of death, is somewhat affected by the nature of the case in which the question arises. In trials for homicide, this is, of necessity, to be proved at the outset, in the most satisfactory manner, and beyond any reasonable doubt; such being the rule of evidence in the criminal law. This, therefore, is the highest degree of proof demanded of this fact. In civil cases it is ordinarily sufficient to prove it by the mere preponderance of evidence; and yet here there is a difference in the amount of proof required, according to the materiality of the fact to the subject in controversy. Thus, in a claim of title by descent or succession, or of the right of administration, the party is held to a more strict proof of the death of the ancestor, than in cases where the question arises incidentally and collaterally in the proceedings, as for example, on a motion to read the deposition of a witness, or to give evidence of his testimony at a former trial, on the ground of his subsequent decease; for these are cases addressed to the discretion of the Court, in which the consequences of mistake are comparatively of not much importance, and are without difficulty retrieved.2 § 278 b. In the United States, the proof of death, in cases not criminal, is required in claiming title to land by descent, as heir, against a stranger; or as dowress, against any tenant of the freehold; or, in the Probate Courts, in an application for letters testamentary, upon the probate of a will; or of letters of administration; or, in a claim of the insurance money, upon a policy on the life of another, by the party to 1 See Post, Vol. 3, § 30, 130, 131, 132. whom it was made payable at his death; or in a claim of wages or pension or bounty-money, by the widow or child of one entitled under the laws regulating the military, land, or naval service. § 278 c. The direct and most satisfactory proof of the death of a person, is the testimony of those who saw him die, or who, having known him when living, saw and recognized his body after his decease. In the former of these cases, if the circumstances were of a nature to leave the fact in any degree doubtful, as for instance, in apparent sudden death, whether from the inhalation of noxious gases, or other accident, the testimony of a medical person is desirable, and, if possible, should be obtained. 3 § 278 d. The indirect evidence of death, is either documentary, or oral. Among the documentary instruments of proof which have been received, may be enumerated Parish and other Registers, where such are required by law to be kept;1 Muster Rolls and Returns, in the military and naval service; 2 Coroners' Inquests; Probate of the will of the deceased, or the grant of administration on his estate; the assignment of the widow's dower, upon writ, or other legal proceedings; previous litigation respecting the estate of the deceased, terminated in favor of those claiming as heirs. The identity of the person is primâ facie inferred from the identity of the name; except where the place of residence was in a large city or town; in which case, proof of some additional circumstances seems to be necessary.5 1 See ante, Vol. 1, § 483, 484, 485, 493; Bull. N. P. 247; Doe v. Andrews, 15 Ad. & El. 756, N. S. A Consul's certificate is not evidence of the death of a person. Morton v. Barrett, 1 Applet. 109. 2 Ibid. 3 Ibid. Sergeson v. Sealey, 2 Atk. 412; 1 Saund. 362, note (1) by Williams. 4 Infra, § 355, 693; Ante, Vol. 1, § 550. 5 Hubback on Succession, p. 103, 464, 465. § 278 e. The oral evidence, indirectly proving death, consists of those circumstances from which the death of the person may reasonably be inferred; such as, long absence, without any intelligence respecting him, reputation in the family, and their conduct thereupon, and other circumstances. In regard to long absence, this alone, without the aid of other facts, has been said not to furnish any presumption of the party's death; 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 authenti cated tables, which have been recognized by the Courts as safe rules in the calculation of the value of annuities, and in 1 Vivere etiam usque ad centum annos, quilibet præsumitur. Corpus Juris Glossatum, Tom. 2, p. 718. And see Mascardus, De Probat. Vol. 1, concl. 103, n. 5; Id. Vol. 3, concl. 1075, n. 1, 1078, n. 6. 2 In Atkins v. Warrington, 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, p. 167, 168. 3 See ante, Vol. 1, § 41; 2 Cruise's Dig. tit. 16, ch. 1, § 25; Id. ch. 3, § 8, 9, 10 (Greenl. ed.); Fearne, Rem. p. 21-23. 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.1 § 278 f. 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.2 The issue, in such 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.3 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. 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. 1 See Hubback on Succession, p. 171, 172. But see In re Hall, Wallace Jr. Rep. 85. 2 See ante, Vol. 1, § 41; Best on Presumptions, § 140; Hubback on Succession, p. 170-173; Thorne v. Rolff, Dyer, 185 a; Gilleland v. Martin, 3 M'Lean, 490; Doe v. Jesson, 6 East, 85. 3 Ibid.; White v. Mann, 13 Shepl. 361. 4 See Hubback on Succession, p. 172-174; McCartee v. Camel, 1 Barb. Ch. R. 455; Doe v. Andrews, 15 Ad. & El. 756, N. S. |