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cause baccarat has been pronounced an illegal game. A county judge refused to hear a case about a lamb, and was mandamused and made to pay costs, and then called the plaintiff "an infamous liar," But the best joke of all is that the Court of Appeals consider that telephone wires are not a nuisance or dangerous. Probably the judges regard the network of wires that adorns our cities as an Eolian harp on a large scale. But these wires have proved very much in the way in the case of great fires.

Mr. William M. Meigs has an important article in the American Law Register for July, on the relief of the Supreme Court of the United States. He proposes to relieve it by bleeding, as some reformers once proposed to relieve our Court of Appeals. Mr. Meigs proposes to abolish the right of appeal on the ground of citizenship. After showing that this class of cases constitutes more than one-third of the entire number, and give special and peculiar trouble to the Court, and after answering the constitutional objection, he observes: "We think these facts show that the jurisdiction depending exclusively on citizenship involves great and peculiar trouble, and it would seem, therefore, that the de

cision of a hundred such cases must demand not a little more time and labor than do an average hundred cases of strictly Federal law. Therefore, as the citizenship cases constitute slightly more than a third of all their cases, we should, by abolishing root and branch this source of jurisdiction, reduce their labor considerably more than a third. This is a vast reduction, and the only question that remains is the advisability of the step. Is there any reason to-day for the court's being troubled with this mass of cases which do not belong to the system of jurisprudence which it is their function to erect? We cannot see that there is. The reason for the constitutional grant of jurisdiction in such cases is well known and was doubtless a hundred years ago a very valid one, but it would seem to have no vital force any longer. At the time the provision was adopted, we were emerging from a condition in which each State had been actively engaged in erecting its own walls of restrictions, with the view of helping itself and injuring its neighbors, and there is no doubt that there were strong feelings of jealousy and distrust among the different States of the confederation. This condition of affairs was the very reason for the making and adoption of the Constitution, and it is highly natural, therefore, that it contained the provision. There would likely, otherwise, have been frequent bickerings and discontents about verdicts and decisions going against citizens suing in States where they did not live, and one of the very purposes of the Constitution would have been frustrated for a time. But the course of nearly one hundred years has changed all this. It is hackneyed now to speak of the nearness of all parts of the country to each other and of the closeness with which we are bound together in all the affairs of daily life, but it is only the more true,

because hackneyed. It is undoubtedly the case that
San Francisco is effectively as near us to-day as
Boston was to Richmond a hundred years ago.
The New Yorker is vastly better acquainted to-day
with the Chicagoan than he then was with the man
from New Haven. We are all closer together in
point of mere time, and in other matters our close-
ness to each other is even greater. And this con-
stant intercourse and knitting of interests has had
that effect which was to be expected. We have be-
come better friends, more similar in manners and
customs, more willing to trust each other, and we
do not now look with staring eyes at the citizen of
another State as he passes us in the street or we deal
with him. On the contrary, we daily see and deal
with many of them, without even knowing it, or
caring, if we do. It may fairly be said that that
prejudice, which was the cause of the constitutional
provision, is a thing of the past. If it was then, it
is no longer, the case that a citizen of any State
need fear that he will fail of receiving a fair trial,
let his suit be in what State you please. We must
not forget, that in the Federal as well as the State
court, he will meet with a jury of citizens of an-
other State than his; and, if the change proposed
is made, the only difference will be that he will
have his trial presided over by a judge, who is also
a citizen of another State than he, which may, pos-
sibly, not be the case, when he has the right to sue
in the Federal courts. We should be loath to be-
lieve that this would put the party from a distance
in any peril of not getting an impartial trial, nor do
we think there is any evidence whatsoever that such
would be the case. If we are right as to the ques-
tion of prejudice, there is certainly no valid reason
why the jurisdiction should not be abolished. If
it is said that their jurisdiction is necessary in such
cases on account of questions of commercial law,
the answer is plain that by far the greater number
of such cases and often growing out of a trans-
action identically the same as that which it is ar-
gued the Federal courts should decide must in-
evitably be subject exclusively to the courts of the
State; and that system sadly lacks uniformity,
which holds a defendant not liable on one contract
and yet liable on another, when the sole difference
between the first and the second is that the parties
to the second are entitled to sue in the Federal
courts. And in the vast majority of such cases, the
Federal courts are, by universal admission, called
upon, merely owing to adventitious circumstances,
to administer the law of another forum. It is cer-
tain that they cannot exercise this function any bet-
ter than the courts of the State, whose very breath
of life is the law in question.
As to the compara-
tively few cases of this nature, in which they de-
cline to follow the law of the State as expounded by
her tribunals, it is submitted that their soundness,
as also their expediency, are matters of grave doubt.
This line of decision has given rise to another great
element of uncertainty as to party's rights as well
citizens as non-citizens of the State and has un-
questionably not attained any such degree of def-

initeness as enables counsel to advise on the subject. The decisions are undoubtedly very conflicting, the question is one of the greatest difficulty and obscurity in itself, and the court has not succeeded in elaborating any system out of it, which offers a reasonable prospect of a scientific basis. We think therefore that even those who support this class of decisions, must feel that their importance is not sufficiently great to render it worth while to yield up the great prospect offered of relieving the court without the creation of new courts and complicated machinery." Mr. Meigs would also cut off appeals from the District of Columbia, constituting five per cent, and Territorial cases involving more than $1,000, constituting four per cent of the entire number.

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It was long since decided that a "running switch" in a thickly settled locality is negligent. The other end of this question is now decided in Howard v. St. Paul, etc., Ry. Co., Minnesota Supreme Court, June 12, 1884, 20 N. W. Rep. 93, where it is held that whether "kicking" is negligent is a question for the jury. The court said: "When the manner of running the cars across the street by 'kicking,' and the situation of the tracks, had been explained to the jury, and the rate of speed at which they were run across, shown, together with the character of the night as to darkness, and of the street as to the extent to which it was traveled, it was peculiarly the province of the jury to determine whether the rate of speed was reasonable, and whether 'kicking' the cars- that is, giving them an impetus sufficient to carry them to the desired point is a more dangerous mode of running them across a street than running them across with the engine, and whether it is any more convenient. No one can be so ignorant of the operating of railroads as not to know that the engine can run across at a snail's pace, while 'kicking' must require considerable speed to be given at the start to carry the cars to the point of destination. It was proper to submit the questions to the jury, though there was no expert testimony, for the matters came within the common sense and common observation

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of the jury." We suppose that whether "kicking is justifiable in a political party sense is also a question for the jury.

In Quinn v. Chicago, B. and Q. R. R. Co., Supreme Court of Iowa, April, 1884, 18 Rep. 47, it is held that where an owner, by his act or permission allows water to collect on his land and it percolates so as to injure the cellar and foundation walls of his neighbor's house, he is liable for such injury in dam

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ages. The court said: "The rule is well settled that no action can be maintained for the diversion of percolating water, where the act of diversion is done by the owner of the premises where done, and is done in good faith. But the injury complained of in this case did not arise from the diversion of percolating water from where it was wanted, as from a well or spring, but from so collecting water that it reached, by percolation, to where it was not wanted, to-wit, to a cellar and to the foundation walls of a house. Our attention has been called to no case where the precise question presented has been decided. On principle it would seem that the plaintiff ought not to recover for such damage if it resulted from the lawful and reasonable use by the defendant of its own lot. How far the plaintiff's house was from the line between her lot and the defendant's does not appear; but the evidence shows that it was near. It shows that it was only four feet between the house and the excavation. If the distance between the house and the line was not such as to afford immunity against water percolating from the defendant's lot, it was the fault of the person who built the house, unless the water was collected and suffered to stand on the defendant's lot through some unlawful or unreasonable use or sufferance. Such use or sufferance the owner of the injured premises was not, we think, bound to anticipate, and consequently was not bound to provide against. It is true that there was no necessary connection between the condition of the water which made it a nuisance, if it was such, and the injury sustained from the undermining of the house; yet it cannot be denied that the length of time during which the water was allowed to stand was, among other things, the cause of both. It is to be observed also that during the continuance of the nuisance the defendant was without excuse in suffering the water to remain. The defendant was under constant obligation to remove it, and the plaintiff had reason to suppose that it would remove it. During that time it was not for the defendant to say that the injury being sustained by the plaintiff was not actionable, because merely incidental to the exercise by the defendant of its own rights. While we think that the instruction asked went too far, and was properly refused, the court should, we think, have submitted the question as to whether the defendant became guilty of a nuisance, as alleged in the petition, and should have instructed the injury that in case they so found they might allow the plaintiff for such injury as her premises sustained from the percolation of water from the excavation after the same became and while it remained a nuisance."

In Ballard v. Tomlinson, Ch. Div., Feb., 1884, 50 L. T. R. 230, the plaintiff, a brewer, drew his watersupply from a well on the premises. On the adjoining premises there was a well. By drawing water from one well the level of the other was lowered, but the connection between the wells was entirely natural. The defendant used his well as a cesspit whereby the water in the plaintiff's well became pol

luted. He sued for an injunction and damages. Held, no cause of action. The court, Pearson J., said: "I do not hesitate to say that the case is an important one. Mr. Cookson has quoted to me the

case of Womersley v. Church, which was a case before Lord Romilly, and is reported only in the Law Times. Mr. Cookson says that that case is an authority to show that no man is allowed on his own land to create a nuisance of such a nature as to foul his neighbor's water, or to allow sewage water to percolate from his land into his neighbor's well. That case is very shortly reported in the Law Times. The conclusion at which I arrive upon reading that case is this, that what the defendant in that case did was so to deal with his own land that the foul water percolated through his land, and through the sides of his neighbor's well, injuring the water in his neighbor's well. I agree that he cannot be allowed to do that. Where however you are dealing with water which is invisible, and of which for all purposes in this court I must assume that nobody knows what the course has been or will be, what to my mind the plaintiff has to show is that any injury is done to any right of his. Now if I am correct in coming to this conclusion that the person who gets first control of that water is at liberty to use it for any purposes that he pleases, then I say, to begin with, no injury is done to the plaintiff. He takes his chance, when the water comes to him, of what the water may be. He is entitled to that subterranean water as it reaches him, but he cannot complain that his neighbors have (if they have done so) exercised their rights before it reaches him, and have done so in such a manner as either to deprive him of the water altogether or to alter its quality. I come, therefore, to this conclusion, that so far as that point of view is concerned the plaintiff has no right of action against the defendant. As to the other part of the case the solicitor-general put it exceedingly clearly this morning. He said this: It is in evidence that at this particular part of Brentford you are very nearly at the bottom level of the chalk stratum, and that there is nothing whatever to show, that if the two wells were left in perfect quiet, any thing coming from the defendant's well would get into the plaintiff's well. The solicitor-general argues that both wells being in a state of equilibrium, whatever the defendant poured down his well would remain there, and whatever water there was under the plaintiff's property would remain pure, and that nothing would escape from the defendant's well to the plaintiff's well. 'But,' says the solicitor-general, 'if you choose to alter that state of things; if you choose for your own purposes, and for the use of the water, to pump your well, and to create a vacuum, the result is this, that as the cone of exhaustion extends you arrive at last at the defendant's well, and you naturally draw away from him that which is lying under his well. The defendant does not complain of that, but he says, if you choose to come upon my premises and draw water which is there from me, you must be content to take the water as you find it, and you cannot complain

that the water is dirty when you yourself have come to seek it, and have taken it away. I did not send it to you. I left it where it was; you have ex mero motu, chosen yourself to come and draw off that water.' Now is not that true? Must it not be the case, all this water lying in the chalk stratum, that any person who draws it must draw it from his neighbors? Of course it is not water confined in an inexhaustible reservoir immediately at the bottom of the plaintiff's premises; but it is water lying in a very large stratum underneath, and if you take away from it, the place from which you take it away must be immediately supplied by water coming more or less from a distance, and the longer you pump the greater the distance from which it will come. Is it not, therefore, one of the incidents of the use of this water, that if you choose to use it, you take it at once subject to every single thing that has occurred to it by the use of it by other proprietors at a greater distance before it can reach your premises. I must say that I think that argument is sound. If that is so, then there is also a good defense on that ground to the plaintiff's action."

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In Proctor v. Putnam Machine Co., Supreme Judicial Court of Massachusetts, May 8, 1884, 18 Rep. 51, plaintiff, acting under an honest mistake of fact as to the true boundary line between his estate and that of defendant, gave defendant oral permission to build a wall on such supposed true line, and the wall was so built. Held, that plaintiff was not estopped for maintaining a writ of entry for the recovery of his land on which the wall was built. The court said: "A mistake of fact honestly made by the plaintiff as to the location of the boundary line of his lot by which he was induced to assent to the placing of a wall thereon by the defendant could not operate either to convey the land or estop the plaintiff from asserting his title thereto. The instruction that if the plaintiff acted with any fraudulent intent to deceive or mislead, he would be estopped from maintaining the action sufficiently guarded the rights of the defendant. While it has been held that in a matter of boundary, which is a question of the true line of division between adjoining estates, uncertainty may be removed by an arbi tration and an award, which not directly operating to convey the land, will conclude the parties from disputing the boundary as thus determined, no such case is here presented. Goodridge v. Dustin, 5 Met. 363. Where a boundary line has been erroneously run between adjoining estates without fraud and under a mutual mistake, one party is not estopped from claiming his own land up to the true line because the other has with his knowledge erected buildings or incurred expense by reason of the mistake. Tolman v. Sparhawk, 5 Met. 469; Liverpool Wharf v. Prescott, 7 Allen, 494. An occupation according to such erroneously drawn line, if adverse and under a claim of right, would without doubt effect a change of title if sufficiently long continued, but within the period of limitation the party who has thus permitted another to occupy beyond the true boundary may

assert his own title. Neither lands nor any interest therein are to be conveyed by mere oral agreement, and the declarations or admissions of a demandant, made in good faith and by mere mistake, cannot estop him from proving the legal title to his estate, even if but for such admissions or declarations the tenant might not have incurred the expenditures which he has made. Tolman v. Sparhawk, 5 Met. 469; Brewer v. Boston and Worcester R. R., id. 478. We are aware that some decisions in other States have held a different rule, but as we deem that laid down by the presiding judge to be well sustained by our own authorities it does not seem necessary to consider them." To same effect, Hass v. Plautz, 56 Wis. 106; S. C., 43 Am. Rep. 699.

THE PRESUMPTION OF SURVIVORSHIP.

RULE I. There is no presumption as to the order in which two or more persons died who are shown to have perished in the same accident, shipwreck or battle. The law regards them as having died at the same instant.

The common law (unlike the civil law in this respect which answers the questions arising out of the death of several persons in a common calamity by recourse to a number of fixed presumptions based on the age, sex and strength of the parties) (1) does not attempt to ascertain, in the absence of any evidence on which to go, the survivor of a common catastrophe. Strictly it may be said that the common law presumes neither that one survived nor that all perished at the same moment. But by leaving the matter as one unascertainable, 'the practical consequence," as has been said, “is nearly the same as if the law presumed all to have perished at the same moment." It is in fact exactly the same. Where two persons (whether of the same or different ages, sexes or physical conditions) perish in an accident, shipwreck or battle, and there is no evidence to show which one of the several survived, the law will not raise any presumption from the fact that one was younger or stronger, or of the more hardy sex, that he survived an older or a weaker or a less hardy victim. The party alleging that one survived the other must prove it; the onus is on him who claims a right or title upon the theory of the survivor. ship of one to prove that fact affirmatively.(2)

ILLUSTRATIONS.

1. H. and his wife, while in a railroad car together, are precipitated through a bridge into a river. They are afterward found dead, and no proof of one surviv(1) So in California Civ. Code, § 1963, subd. 40.

(2) Mason v. Masón, 1 Merivale, 307 (1816); Wallaston v. Berkeley, 2 Ch. Div.213 (1876); Re Heuss. 2 Salk. 533; Re Wheeler, 37 L. J. (P. & M.) 40; Robinson v. Sallier, 2 Woods, C. C. 187 (1875); Contra Calvin, Procurator-General, 1 Hagg. Ecc. 92 (1827); and see Durrant v. Friend, 5 De G. & Sn. 345 (1852); Scutton v. Patullo, L. R., 19 Eq. 375 (1875); R. v. Hay, 1 W. Black, 646. This was the celebrated case of General Stanwix, who, with his wife and daughter by a former marriage, perished at sea on a voyage from Dublin to Eugland. Mr. Teame composed two ingenious arguments, one in favor of each of the claimants, which are printed in his posthumous works. In Selleck v. Booth, 1 Tow. & Coll. C. C. 117, Vice-Chancellor Knight Boice held that a presumption of priority of death might arise from the comparative age, strength and health of the parties. In this case two brothers perished In a shipwreck; one was the master; the other the second mate of the vessel; and he ruled that the former (the elder) would be presumed to have survived the latter as being the most expe. rienced sailor. Mr. Taylor (Ev. vol. 1, 160) says of this case that it cannot be relied on as authority, since it is opposed to a long current of decisions."

ing the other is presented. Held, that neither transmitted any rights to the other, and the heirs of H. must take.(3)

2. A father and two children were lost in a shipwreck, there being no evidence of survivorship. The next of kin of the children claimed. Held, that the burden of showing that they survived their father being upon them, they could not recover. (4)

3. A father seventy-three years old, and his daughter thirty-three years old, being on board a steamship which was lost at sea, perished in the same calamity, and nothing was shown which tended to prove that one died before the other. The heirs of the daughter can take nothing as coming to her from the father. (5) 4. A. made a will, leaving some legacies and appointing his wife residuary legatee; she died, leaving several children. A married again, and had no child. A., with his wife and all his children, afterward were lost at sea. Held, that the will was not revoked. (6)

5. T. and his wife perished at sea in the same shipwreck, and there was no evidence who survived. The question erose whether the relatives of the husband or of the wife were entitled to the residue of his estate. Held, that the former were. (7)

6. A husband and wife were lost with all on board of a packet in the English channel. The next of kin of the husband claimed certain as property coming to him as the heir of his wife. There being no evidence that the husband survived the wife, the application was refused. (8)

7. A husband and wife were swept by the same wave into the sea and not afterward seen. Held, that the court could not assume that either survived the other.

(9)

8. W. and his wife were killed at the massacre at Cawnpore on or about the 27th of June, 1857. There was no evidence which perished first. There was no presumption that either survived the other. (10)

9. Two persons, husband and wife, made separate wills. In the husband's will the property was given to the wife, and in case my wife shall die in my lifetime, then to W. W. in trust for the children on their coming of age." In the wife's will (made under a power given her by her deceased father, in default of the exercise of which the property was to go to relatives specifically named) property was given to her husband, and "in case my husband should die in my life-time," then to W. W. absolutely. The husband and wife and two children perished at sea, being all swept off the deck by one wave, and all disappearing together. Held, that there was no presumption that the husband had survived the wife or the wife the husband; that it was necessary that W. W. should show affirmatively that one or the other had survived, and that in the absence of such proof the property went to the relatives specifically named in the will of the wife's father, as there had been no will by the husband nor any appointment by the wife. (11)

10. A mistress made a will, in which she left her housekeeper the whole of her property. Mistress and

(3) Re Hall, 12 Ch. L. 12, 68 (1879).

(4) Newell v. Nichols, 12 Hun, 604 (1878). (5) Coye v. Leach, 8 Metc. 371 (1844).

(6) Wright v. Netherwood, 2 Salk. 592 (1743).

(7) Taylor v. Deblock, 1 Phill. 261 (1815); Re Selwyn, 3 Hagg. Ecc. 748 (1831). In this case the court said: "Instances have occurred where under similar circumstances the question has been, which of the two survived? But in the absence of clear evidence, it has generally been taken that both died in the same moment." Re Murray, 1 Curt. 596 (1837). (8) Satterthwaite v. Powell, 1 Curt. 705 (1838).

(9) Underwood v. Wing, 4 De G., M. & G. 657 (1855).

10) Re Wainwright, 1 Sw. & Tr. 257 (1858); Re Ewart, id. 258 (1859).

(11) Wing v. Ungrave, 8 H. L. Cas. 183 (1860).

housekeeper were murdered at the same time, there being no evidence which one died first. The claimants under the servant could not succeed.(12)

11. W., her husband and child sailed from New York to Europe in March, 1841, in the steamship President. Before this she had procured a policy of insurance on her life for the benefit of her daughter. Neither the President nor any of its passengers were ever subsequently seen or heard of. There was no presumption that the daughter survived her mother.(13)

12. A mother and an infant son were lost in a ship. wreck. The presumption is that they died at the same time.(14)

13. A. and B., husband and wife, are killed in the same casualty, e. g. (the wrecking of a railroad train by the giving way of a bridge). The presumption is that they died at the same time. (15)

14. A father, with his two children, perished in a shipwreck. There is no presumption either that a particular one of the three survived the other, or that they did not all perish at the same instant.(16)

In case 3 it was said: "The case stands thus: Sylvanus Keith and his daughter, Mrs. Coye, perished in the same disaster. No fact is shown giving the least indication that either party, from the nature of the accident or the position of the parties, had any advantage over the other for protecting life. Nothing is shown of their particular capabilities arising from personal strength or vigor. Nothing indeed is put into the case to control it in favor of either besides age and sex; and these are not decisive tests in the present case. In truth there is nothing to show that either the father or the daughter survived the other. The evidence

* * * fails to show that the estate of Sylvanus Keith ever vested in Caroline E. Coye, his daughter. To effect this it was necessary that she should have survived her father. We do not feel authorized to say that this fact is satisfactorily established. For aught that appears in the present aspect of the case they may both have perished together. This being so, and no arbitrary presumption being authorized by law in such cases arising from age or sex, the consequence is that those who seek to enforce their rights as heirs at law of Caroline E. Coye must fail in establishing their right to a distributive share in the estate of Sylvanus Keith."

"With respect to the priority," said Sir William Wynne in case 4, "it has always appeared to me more fair and reasonable in these unhappy cases to consider all the parties as dying at the same instant of time than to resort to any fanciful supposition of survivorship on account of the degree of robustness. *** Therefore taking into consideration that there was no wife or child at his death, I pronounce for the will."

In case 5 Sir John Nicholl said: "There is no evidence direct as to this point; some inferences have been deduced. It is stated that the two bodies were found together. This tends to show that they were in the same situation at the time of death. Upon the whole, I am not satisfied that proof is adduced that the wife survived. Taking it to be that both died together, the administration is due to the representatives of the husband. I assume that both perished in the same moment, and therefore I grant the administration to the representatives of the husband. I am not deciding that the husband survived the wife." In case 6 the judge said: "The principle has been (12) See Doe v. Nepean, 5 B. & C. 92 (1833). (13) Moehring v. Mitchell, 1 Barb. Ch. 265 (1846).

(14) Stinde v. Goodrich, 3 Redf, 87 (1877); Re Ridgway, 4 id. 226 (1880).

(15) Kansas Pac. R. C. v. Miller, 2 Cal. 443 (1874); Russell v. Hallett, 23 Kans. 276 (1880).

(16) Newell v. Nichols, 75 N. Y. 78 (1878).

frequently acted upon that where a party dies pos sessed of property that the right to that property passes to his next of hin, unless it be shown to have passed to another by survivorship. Here the next of kin of the husband claims the property which was vested in his wife: that claim must be made out; it must be shown that the husband survived. The property remains where it is found to be rested unless there is evidence to show that it has been divested. The parties in this case must be presumed to have died at the same time, and there being nothing to show that the husband survived his wife, the administration must pass to her next of kin."

In case 7 Mr. Justice Wightman said: "We think there is no conclusion of law upon the subject; in point of fact we think it unlikely that both did actuually die at the same moment of time, but there is no evidence to show which of them was the survivor."

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"Where two persons," said Lord Chelmsford in case 9, are at one and the same instant washed into the sea, and disappear together, and are never seen any more, it is not possible for any tribunal called upon judicially to determine the question of survivorship to form any judgment upon the subject which can be founded upon any thing but mere conjecture derived from age, sex, constitution or strength of body or mind of each individual, and as our law has not established any rules of presumption for these rare and extraordinary occasions, the uncertainty in which they are involved leaves no greater weight on one side or the other to incline the balance of evidence either way. If therefore it is necessary for W. W. to establish his claim under the will of Mrs. U., should prove that she survived her husband, he must altogether fail."

In case 14 it was said: "There is no legal presumption (p. 87, 75 N. Y.) which courts are authorized to act upon that there was a survivor any more than that there was a particular survivor. It is not claimed that the children died at the same time. Indeed it may be conceded that it is unlikely that they ceased to breathe at precisely the same instant,and as a physical fact it may perhaps be inferred that they did not. But this does not come up to the standard of proof. The rule is that the law will indulge in no presumption on the subject. It will not raise a presumption by balancing probabilities, either that there was a survivor or who he was. In this respect the common law differs from the civil law. * * It is regarded

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as a question of fact to be proved, and evidence merely that two persons perished by such a disaster is not deemed sufficient. If there are other circumstances shown, tending to prove survivorship, courts will then look at the whole case for the purpose of determining the question; but if only the fact of death by a common disaster appears, they will not undertake to solve it on account of the nature of the question and its inherent uncertainty. It is not impossible for two persons to die at the same time, and when exposed to the same peril, under like circumstances. It is not as a question of probability very unlikely to happen. At most the difference can only be a few seconds. The scene passes at once beyond the vision of human penetration, and it is as unbecoming as it is idle for judicial tribunals to speculate or guess whether during the momentary life struggle one or the other may not have ceased to gasp first, especially when the transmission of the title of property depends upon it, and hence in the absence of other evidence the fact is assumed to be unascertainable, and property rights are disposed of as if death occurred at the same time. This is done, not because the fact is proved, or that there is any presumption to that effect, but because there is no evidence and no presumption to the contrary,

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