Spencer v. . Roper

35 N.C. 333 | N.C. | 1852

When Spencer v. Moore was before this Court at June Term, 1850 (33 N.C. 161) an opinion was expressed by the Court, consisting of the same members as now, upon the question presented in this case. It is true that it was then incidentally before us, and the decision of the cause was not made to rest upon it. The Chief Justice, in delivering the opinion of the Court observed: "The rule as to the presumption of death is that it arises from the absence of the person from his domicil, without being heard from, for seven years. But it seems rather to be the current of the authorities that the presumption is only that the person is then dead, namely, at the end of the seven years, but that the presumption does not extend to the death having occurred at the (334) end, or any other particular time within that period, and leaves it to be judged of as a matter of fact according to the circumstances, which may tend to satisfy the mind that it was at an earlier or later day." So much of the opinion in the above case is transferred to this, because what was then but intimated we now express as our confirmed opinion. The cases governing this were then examined and referred to. We have again examined them, and after full deliberation see no cause to alter our opinion. In Doe v. Nepean, 5 Barn. Ald., 886, the principle was more elaborately argued than anywhere else, and there it was laid down as stated above. The judgment was confirmed in error upon an appeal. 2 Mason Wil., 894. To the doctrine so stated Mr. Greenleaf adds his authority. 1 Greenleaf Ev., sec. 41. See also, Best on Presumption, 191. As remarked by the Chief Justice in Moore's case, the only authority we can find conflicting with the above is Smith v. Knowlton, 11 N. H., 191. We do not feel justified upon it to depart from the authorities referred to. His Honor laid down the rule of law correctly according to the prayer of defendant's counsel. Where a party has been absent seven years, without having been heard of, the only presumption arising is that he is then dead; there is none as to the time of the death. If it become important to any one to establish the precise time of such person's death, he must do so by evidence of some sort, to be laid before the jury, besides the mere lapse of seven years since being last heard from. This we consider the settled law, and it would have been so declared in Moore's case but for the fact that its decision did not require it.

PER CURIAM. Affirmed.

Cited: Bragaw v. Supreme Lodge, 124 N.C. 160.

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