Presumption of the duration of life and survivorship.] The presumption of the duration of life of persons of whom no account can be given, generally ends at the expiration of 7 years from the time when they were last known to be living. Per Ld. Ellenborough, C.J., Doe d. George v. Jesson, 6 East, 84; Doe d. Lloyd v. Deakin, 4 B. & A. 433. By stat. 19 Car. 2, c. 11, s. 1, in action by lessor or reversioner for the recovery of lands granted or leased for lives, or for years determinable on lives, the cestuis que vie shall be accounted to be naturally dead if they shall remain beyond the seas, or elsewhere absent themselves within the realm, by the space of 7 years together, and no sufficient or evident proof be made of the lives of such persons: sect. 4 provides for the recovery of the land and mesne profits where the cestuis que vie are afterwards shown to have been living. At common law, proof by one of a family, that, many years before, a younger brother of the person last seised had gone abroad, that the reputation in the family was that he had died there, and that the witness had never heard in the family of his having been married, is presumptive evidence of his death without issue. Doe d. Banning v. Griffin, 15 East, 293. So where a person is shown to have been in existence a long time ago, as 100 years, his death unmarried and without issue will be presumed in the absence of any evidence to the contrary. Doe d. Oldham v. Wolley, 8 B. & C. 22; Greaves v. Greenwood, 2 Ex. D. 289, C. A. But in shorter periods (as 50 years) inquiry must be made in proper quarters, and from persons likely to know, whether the missing party A. has been heard of. Doe d. France v. Andrews, 15 Q. B. 756. If those persons say that they have heard of A., the onus of proof is shifted, but the party seeking to prove A.'s death may then give evidence to show that their only information is erroneous. Edmonds v. Prudential Assur. Co., 2 Ap. Ca. 487, 511, 514, per Ld. Blackburn. Proof that a person sailed in a ship bound for the West Indies, 2 or 3 years ago, and that the ship has not since been heard of, is presumptive evidence that the person is dead; but the precise time of the death, if material, must depend upon the circumstances of the case. Watson v. King, 1 Stark. 121. See also Doe d. Ld. Ashburnham v. Michael, 17 Q. B. 276; 20 L. J., Q. B. 480, cited post, p. 56.

The fact of the party being alive or dead at any particular period within, or at the end of, the 7 years must be proved by the party asserting that fact. Doe d. Knight v. Nepean, 5 B. & Ad. 86; 2 M. & W. 894, Ex. Ch. ; In re Phene's Trusts, post, p. 41. In a case where a girl of 16 ran away from her father, a small farmer, and was never heard of after 1814, when she left England, Shadwell, V.-C., refused to presume in 1844, that she had died in 1821; the mere fact of her not having been heard of since 1814 afforded no inference of her death; for the circumstances of her case made it probable that she would never be heard of by her relations. Watson v. England, 14 Sim. 28; Dowley v. Winfield, Id. 277; Bowden v. Henderson, 2 Sm. & Giff. 360. In the cases of In re Beasney's Trusts, L. R. 7 Eq. 498, and In re Henderson's Trusts, cited Id. 499, it was held that where a person had not applied for the payment of an annuity which he had previously received, and on which he was dependent for his support, there was evidence of his death before the payment became due. See also Hickman v. Upsall, L. R. 20 Eq. 136; 4 Ch. D. 144.

Presumptions as to the continuance of life are not legal presumptions, but presumptions of fact only, depending on the circumstances of each case. Lapsley v. Grierson, 1 H. L. C. 498; R. v. Lumley, L. R., 1 C. C. 196; R. v. Willshire, 6 Q. B. D. 366. Where N., born in 1829, went to America in 1853, and frequently wrote home till August, 1858, when he wrote from on board an American war-ship, but from that time nothing was heard about

Duration of Life, &c.-Regularity of Acts, &c.

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him except that he was entered in the books of the American navy as having deserted on the 16th June, 1860, while on leave, Giffard, L. J., refused to presume that N. was alive on the 6th Jan., 1861. In re Phene's Trusts, L. R., 5 Ch. 139 ; accord. In re Lewes' Trusts, L. R., 6 Ch. 356. See also In re Walker, L. R., 7 Ch. 120.

Where a husband and wife had been carried off the deck of a vessel by the same wave, it was held that there was no inference of law as to survivorship from the different sex, age, and state of health of the husband and wife; that the question was, from beginning to end, one of fact; and the difference in strength, age, and in other respects, was merely matter of evidence for the jury. Underwood v. Wing, 23 L. J., Ch. 982; 4 D. M. & G. 633; 24 L. J., Ch. 293; affirm. in Wing v. Angrave, 8 H. L. C. 183; 30 L. J., Ch. 65; Re Green's Settlement, L. R., 1 Eq. 289.

See further, 1 Dart's Vendors and Purchasers, 5th ed., pp. 340–344, where all the cases on these subjects are collected.

A presumption which juries ought to make is, that males under 14 are incapable of sexual intercourse. The period of gestation is also presumed to be about 9 calendar months. The exact limits of variation of this period are not very clearly settled; so that if there were any circumstances from which an unusually short or long period of gestation might be inferred, or if it were necessary to ascertain the period with nicety, special medical testimony would be required. The subject was elaborately discussed in the Gardiner Peerage case, which is reported separately by Le Marchant. In ordinary cases juries would be directed that fruitful intercourse and parturition are separated by a period not varying more than a week either way from that above mentioned.

Presumption in favour of the regularity of acts, appointments, &c.] The legal maxim here applicable is omnia præsumuntur rite et solenniter esse acta. Where a feoffment has been proved, livery of seisin may be presumed after 20 years, if possession has gone along with the feoffment; Biden v. Loveday, cited 1 Vern. 196; Rees v. Lloyd, Wightw. 123; but a less time than 20 years is not sufficient; Doe d. Wilkins v. Cleveland, Ms. of, 9 B. & C. 864; except as against one who claims under it. Doe d. Rowlandson v. Wainwright, 5 Ad. & E. 520. As to a presumption of the regularity of acts done after a lapse of time without impeachment of them, see the observations of the court in Williams v. Eyton, 2 H. & N. 771; 27 L. J., Ex. 176; S. C. on error, 4 H. & N. 357; 28 L. J., Ex. 146. A person will not be presumed to have committed an unlawful act; therefore, when performances appeared to have taken place at a theatre, a licence was presumed in an action against a performer for not acting. Rodwell v. Redge, 1 C. & P. 220. But where the act requiring the licence directs that a notice of it shall be painted on the outside of the house, and there is no such notice, it will be presumed, in an action for the penalty, that there is no licence. Gregory v. Tuffs, 6 C. & P. 271. Generally it may be laid down that illegality is not presumed; per Bayley, B., in Gleadow v. Atkin, 1 Cr. & M. 418; at least in a suit inter alios, or any collateral proceeding. See Onus Probandi, post, p. 89. So, a fact may be presumed from the regular course of a public office; thus, where it was proved that the customhouse would not permit an entry to be made, unless there had been endorsement on a licence, it was held (the licence being lost) that from this entry the endorsement might be presumed. Butler v. Allnutt, 1 Stark. 222. So when a statute enjoins a public officer to make an entry of registration of a deed when brought to him with an affidavit of certain particulars, it must be presumed from such entry being made, that the affidavit was left with the deed, as required by the statute; Waddington v. Roberts, L. R., 3 Q. B.

579; the deed in this case was a composition deed under the Bankruptcy Act, 1861, s. 192, and the court followed Grindell v. Brendon, 6 C. B., N. Š. 698; 28 L. J., C. P. 333, where the deed was a bill of sale; Gugen v. Sampson, 4 F. & F. 974, 976, cor. Channell, B., is to the like effect. In Mason v. Wood, 1 C. P. D. 63, the court declined to follow these cases, on the ground apparently that the statute did not direct the officer not to file the bill of sale without the affidavit. In the case of the post-office, there is a presumption that a letter properly directed and posted will be delivered in due course; see British & American Telegraph Co. v. Colson, L. R., 6 Ex. 122, per Bramwell, B.; and Stocken v. Collin, 7 M. & W. 515. This presumption is, it would seem, to be extended to postal telegrams, now that the inland telegraphs form part of the Government postal system.

The most common application of this presumption is in favour of the regular appointment of an officer in the execution of his duty. Thus, the fact of a person acting in an official capacity as a surrogate, is primâ facie evidence that he is duly appointed, and has competent authority. R. v. Verelst, 3 Camp. 432. So of other public officers; though the appointment must be in writing; as in the case of justices of the peace, constables, &c. Berryman v. Wise, 4 T. R. 366; Doe d. Davy v. Haddon, 3 Dougl. 310; Marshall v. Lamb, 5 Q. B. 115. So, where a soldier is employed in recruiting, it will be presumed that he is duly "attested soldier" within the Mutiny Act. Wotton v. Gavin, 16 Q. B. 48; 20 L. J., Q. B. 73. See also R. v. Hawkins, 10 East, 211. So in the case of a constable appointed by commissioners under a local act. Butler v. Ford, 1 Cr. & M. 662. And the fact is evidence even in his own favour. S. C. So, where it is necessary to prove the swearing of an affidavit before a commissioner of one of the superior courts, evidence of his acting as such is sufficient. R. v. Howard, 1 M. & Rob. 187. Similar proof of a party's appointment as vestry clerk, M'Gahey v. Alston, 2 M. & W. 206; as solicitor, Berryman v. Wise, supra; as overseer, Cannell v. Curtis, 2 N. C. 228; Doe d. Bowley v. Baines, & Q. B. 1037; or as incumbent of a living, Radford v. M'Intosh, 3 T. R. 635;-has been held sufficient. But in all these cases the evidence is only presumptive, and may be rebutted, when the regularity of the appointment is a pertinent inquiry.

As to presumption that an instrument lost, or not produced on notice, is or is not duly stamped, see post, tit. Stamps-Effect of want of stamp; Stamp, when presumed.

HEARSAY.

It is a general rule of evidence that declarations of persons not made upon oath are inadmissible evidence of the fact declared. Spargo v. Brown, 9 B. & C. 938. Unless it be by way of admission by a party to the suit. Therefore, hearsay evidence, which is the mere repetition of such declarations upon the oath of a witness who heard them, is excluded. There are, however, certain classes of cases in which hearsay is on various grounds admissible.

Hearsay admissible in questions of Pedigree.] In questions of pedigree, the oral or written declarations of deceased members of the family are admissible to prove a pedigree. And this exception is founded on the obvious difficulty of tracing descent and the relationship of deceased members of families by any other evidence. Thus, declarations of deceased parents are admissible to prove the legitimacy of their children. So, hearsay is good evidence to prove who is a person's grandfather; when he married; what children he had; or the death of a relation beyond sea, &c. B. N. P. 294-5; Bridger v. Huett, 2 F. & F. 35. The declarations of a deceased

parent and another relation were admitted to show which of several children born at a birth, was the eldest. Per Reynolds, C. B., 12 Vin. Abr. 247; cited 4 Camp. 410. Declarations in a family, descriptions in wills, inscriptions upon monuments, in bibles or other books, and in registry books, are all admitted, upon the principle that they are the natural effusions of a party who must know the truth, and who speaks upon an occasion where the mind stands in an even position, without any temptation to exceed or fall short of it. Per Lord Eldon, Whitelocke v. Baker, 13 Ves. 514; Higham v. Ridgway, 10 East, 109; Berkeley Peerage case, 4 Camp. 418. And see the Slane Peerage case, 5 Cl. & Fin. 23; and the Vaux Peerage, Ib. 526. Entries in a family bible are admissible in evidence, on the ground that being in that place they are to be taken as assented to by those having the custody of the book; proof of the handwriting of the entries is therefore immaterial. Hubbard v. Lees, L. R., 1 Ex. 255. See also Berkeley Peerage case, 4 Camp. 421; per Lords Ellenborough and Redesdale. It seems, however, that in the case of any other book the entries must be proved to have been made by a member of the family; Tracy Peerage, Hubback, Evid. of Succession, 673; or that they have been treated by a relative as a correct family memorial. Hood v. Beauchamp, 8 Sim. 26. A pedigree which has long hung up in a family mansion is good evidence in such cases; Goodright d. Stevens v. Moss, 2 Cowp. 594; or a marriage certificate kept by the family; Doe d. Jenkins v. Davies, 10 Q. B. 314. A minute-book of a visitation, signed by the heads of the family, has been admitted, though produced from a private library. Pitton v. Walker, 1 Stra. 162. A signed pedigree delivered to the Heralds' College by virtue of a commission under which the college was authorised to receive and enrol such pedigrees was admitted. Shrewsbury Peerage case, 7 H. L. C. 19. So, a paper in the handwriting of a deceased member of the family, purporting to give a genealogical account of the family, was held admissible, though never made public by the writer, erroneous in many particulars, and professing to be founded partly on hearsay. Monkton v. Att.-Gen., 2 Russ. & Myl. 147. So, a ring, worn publicly, stating the date of the person's death whose name is engraved upon it. S. C., Id. 162. So, a description of a party as daughter and heir," in a deed signed by the party so described. Doe d. Jenkins v. Davies, supra; Smith v. Tebbitt, L. R., 1 P. & M. 354. But an old pedigree, professing on the face of it to be compiled from "registers, wills, monumental inscriptions, family records, and history," and going back to a fabulous date, is not evidence, though proved to be signed by members of the family, except so far as it relates to persons presumably known to them, or respecting whom they may have obtained information from other members of the family; whether the mere recognition of a pedigree by a deceased ancestor will make it legitimate evidence (except against claimants under him) is doubtful. Davies v. Lowndes, 5 N. C. 161; 6 M. & Gr. 471, 512, 525, &c., Ex. Ch. The ground upon which the inscription on a tombstone, or a tablet in a church, is admitted is that it is presumed to have been put there by a member of the family cognizant of the facts, and whose declaration would be evidence ; Id. 512, per Parke, B.

The memoranda of a parent are good evidence to prove the time of the birth of a child. Herbert v. Tuckal, T. Raym. 84, cited by Lord Ellenborough in Roed. Brune v. Rawlings, 7 East, 290. But the declaration of a father as to the place of birth of a son was considered inadmissible, as being a mere question of locality, and not of pedigree, in R. v. Erith, 8 East, 542. So, in Shields v. Boucher, 1 De G. & Sm. 40, Wilde, C. J., rejected, upon the trial of an issue, declarations of a relation as to the part of England from which he had originally come; but on moving for a new trial, Knight

Bruce, V.-C., expressed a strong opinion in favour of their admissibility in a case of mere genealogy, and with a view to identify ancestors, and distinguished R. v. Erith, ante, p. 43. Accord. per Kindersley, V.-C., in Bauer v. Mitford, 7 W. R. 570, June, 1859; and declarations of a party, showing that he has or had relations living at A., have been admitted to identify persons whose existence is proved aliunde. Rishton v. Nesbitt, 2 M. & Rob. 554; Hood v. Beauchamp, Hubback, Evid. of Succession, 468, cited 1 Tayl. Evid., $582. The declarations of a party as to his own illegitimacy, or place of birth, seem inadmissible except against himself, or those claiming under him by title posterior to the declaration. R. v. Rishworth, 2 Q. B. 476.

Where statements contained in monumental inscriptions, and declarations made by a deceased relation, were offered in evidence upon the trial of an issue out of Chancery to prove the ages of the parties referred to, Tindal, C. J., rejected the evidence; but Lord Brougham, C., after argument, expressed a very strong opinion in favour of it; and afterwards stated that he had the concurring opinions of Littledale, J., and Parke, J.; but, the suit being compromised, no further opinion was delivered. Kidney v. Cockburn, 2 Russ. & Myl. 167. An inscription on a tombstone, stating the death of a party at the age of 90, was admitted as evidence of the age. Rider v. Malbone, cor. Littledale, J., cited Id. pp. 169, 170. For other cases in which inscriptions on monuments have been admitted in proof of pedigree, see 1 Taylor, Evidence, § 587, and Shrewsbury Peerage, 7 H. L. C. 1. So, an old tracing from an effaced monument has been admitted. Slaney v. Wade, 7 Sim. 595. A bill in Chancery by a father, stating his pedigree, was admitted in Taylor v. Cole, 7 T. R. 3, n. ; but this is contrary to the resolution of the judges in the Banbury Peerage case, 2 Selw. N. P., 2nd ed. 773, and to Boileau v. Rutlin, 2 Exch. 678. An answer in Chancery, sworn ante litem motam, seems unexceptionable as evidence of pedigree incidentally set forth in it; but in the Wharton Peerage case, 12 Cl. & Fin. 295, an answer, sworn but not filed, was rejected as evidence of pedigree. The recital in a family conveyance by a trustee, is evidence of parentage. Slaney v. Wade, supra. So an old and cancelled will has been allowed as evidence of the existence and relative ages of certain deceased members of the family from whom both parties derived title. Doe d. Johnson v. Pembroke, Earl of, 11 East, 504. The probate of a will is not primary evidence for this purpose. Doe d. Wild v. Ormerod, 1 M. & Rob. 466; Dike v. Polhill, 1 Ld. Raym. 744. The will itself and signature of the testator must be proved, unless the age of the document or other circumstances dispense with such proof; it is said, however, that the "ledger book” or original rolls" of the Ecclesiastical Court, containing an enrolment of the will, are admissible evidence to prove relationship. B. N. P. 246.

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It is not necessary that the declarations should be contemporaneous with the facts declared thus, a person's declaration, that his grandmother's maiden name was A. B. is admissible. Per Ld. Brougham, C., Monkton v. Att.-Gen. 2 Russ. & Myl. 158. Nor is it necessary that the fact declared should be in the personal knowledge of the declarant; thus, the declaration of A. as to what he heard from B. is admissible, if both be relations. S. C. Id. 165.

Declarations of the kind above described are strictly admissible only in inquiries relating to descent or relationship, or in tracing the devolution of property. In proving recent events, such as the place of birth, age, death, &c., of a person, where that fact is directly in issue, stricter proof may be reasonably required. The poor law cases, such as R. v. Erith, &c., ante, p. 43, are for this reason not cogent authorities in cases of pedigree. In peerage cases, also, unusually strict evidence is exacted.

General reputation is good evidence in pedigree cases, e. g., of heirship;