Ashbury v. Sanders

Burnett, J., delivered the opinion of the Court—Murray, C. J., concurring. The only question of fact in this case, decided by the Court below, was the alleged death of Sanders, the defendant. It was shown, in proof, that Sanders left San Francisco in the bark Elvira Harbeck, for Manila; that said bark arrived at the Sandwich Islands on the second day of May, 1855, and soon left, with [64]Sanders on board, since which time nothing has been heard of him, or of the vessel, or any of the crew; that the insurance on the vessel, as a total loss, had been paid, and the relatives of the master and his wife, who were on board, went into mourning for them, and had given them up as lost. It was also shown that Sanders was indicted for a felony, and had absconded. The trial in the Court below was held on the seventeenth of Sdptember, 1856, being sixteen months from the time the defendant was last heard of. The case was tried without a jury, and the Court found the death of the defendant, and the plaintiff appealed to this Court.

This is one of those cases where a question of fact must be settled by presumption, without positive proof. Every system of law must, from necessity, indulge in presumptions in certain cases. The presumption may be arbitrary, but still indispensable. Questions must be settled, and all that can be done, is to adopt the most reasonable presumption that the case allows; and as presumptions must be indulged, in such cases, it becomes most important that some certain and consistent rule should be adopted.

The general rule upon this subject is concisely stated in the forty-first section of Greenleaf on Evidence: “ Where the issue is upon the life or death of a person once shown to have been living, the burden of proof lies upon the party who asserts the death. But after the lapse of seven years without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party.” “ But where the presumption of life conflicts with that of innocence, the latter is generally allowed to prevail.”

In this case, it was not the simple fact that Sanders had not been heard of for sixteen months, but it was that fact, taken in connection with the other facts, that he was on board a particular vessel bound to a specified port, and that neither the vessel, nor any of the crew, had been heard from, upon which the Court below predicated its findings. It must be conceded that the presumption of the death of a particular person, under such circumstances, is much stronger than the mere fact of absence would ordinarily justify. But is the presumption, arising from such circumstances, sufficiently strong to overcome the presumption of life?