Doe dem. Knight against Nepean, Bart
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1833 |
| Date | 01 January 1833 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 724
IN THE COURT OF KING'S BENCH
2 N. & M. 219; 2 L. J. K. B. 150; 2 Mee. & W. 894; 7 L. J. Ex. 335. Referred to, In re Benham's Trust, 1867, L. R. 4 Eq. 419; R. v. Lumley, 1869, L. R. 1 C. C. 198; In re Beasney's Trusts, 1869, L. R. 7 Eq. 499; In re Phene's Trusts, 1870, L. R. 5 Ch. 147; In re Lewe's Trusts, 1870-71, L. R. 11 Eq. 239; L. R. 6 Ch. 357; Drummond v. Sant, 1871, L. R. 6 Q. B. 767; Des Barres v. Shey, 1873, 29 L. T. 595; In re Rhodes, 1887, 36 Ch. D. 589; R. V. Tolson, 1889 23 Q. B. D. 184; In re Aldersey, [1905] 2 Ch. 185.
724 DOE V. NEPEAN 5B-&AD.86. [86] doe dem. knight against nepean, baet. 1833. A person who has not been heard of for seven years, is presumed to be dead, but there is no legal presumption as to the time of his death. The fact of his having been alive or dead at any particular period during the seven years, must be proved by the party relying on it. [2 N. & M. 219; 2 L. J. K. B. 150; 2 Mee. & W. 894 ; 7 L. J. Ex. 335. Referred to, In re Benham's Trust, 1867, L. R. 4 Eq. 419 ; B. v. Lumley, 1869, L. R. 1 C. C. 198; In re Beasney's Trusts, 1869, L. R. 7 Eq. 499 ; In re Phene's Trusts, 1870, L. R. 5 Ch. 147; In re Lewes' Trusts, 1870-71, L. R. 11 Eq. 239; L. R. 6 Ch. 357; Drummond v. Sant, 1871, L. R. 6 Q. B. 767; Des Bams v. Shey, 1873, 29 L. T. 595; In re Rhodes, 1887, 36 Ch. D. 589; E. v. Tolson, 1889, 23 Q. B. D. 184; In re Aldersey, [1905] 2 Ch. 185.] Ejectment for copyhold premises. At the trial before Taunton J., at the Dorsetshire Summer Assizes, 1832, it appeared that the lessor of the plaintiff claimed the premises by title accruing on the death of Matthew Knight. Matthew went to America in 1807, and was never heard of after that year. The lessor of the plaintiff was then of age. The ejectment was brought in 1832, and the question at the trial was, whether or not this action was barred by Statute of Limitations, 21 Jac. 1, c. 16, s. 1 (a)1. It was admitted that Matthew must be presumed to have died, more than seven years having elapsed since he was heard of. If that presumption were considered as referable to the time when the last intelligence was received of him, the ejectment was brought too late; but if it arose only when seven years had elapsed from the receipt of such intelligence, the action was in time. The learned Judge was of the latter opinion, and directed a verdict for the plaintiff, giving leave to move to enter a nonsuit. In Easter term last, Coleridge Serjt, and Erie shewed cause (5). It is admitted that the lessor of the plaintiff must prove his title to have originated within twenty years. In this [87] case the party on whose death the title accrued, was shewn to have been alive in 1807, and must therefore be presumed to have lived till within twenty years of the bringing of this ejectment; that is, till 1814. One of those conclusions which the law invariably draws from certain premises, and which are called legal presumptions, is the continuance of life in a person once known to be living, till the contrary appear : 2 Stark, on Ev. 261, 2d ed.(a)2, citing Wilson v. Hodges (2 East, 312), where Lord Ellenborough refers to Throgmorton v. Walton (2 Roll. Rep. 461), for the same point. The presumption as to this fact has no definite limit except that which has been laid down by analogy to the express provisions of certain Acts of Parliament (namely, the statute against bigamy, 1 Jac. 1, c. 11, s. 2 (d), and the statute 19 Car. 2, c. 6 ( ?)), (a)1 Which enacts, " That no person or persons shall at any time hereafter make any entry into any lands, &c. but within twenty years next after his or their right or title which shall hereafter first descend or accrue to the same." (5) Before Denman C.J., Littledale J., Parke J. (of And see p. 681, note n. ibid. (d) Which provides, that nothing in that Act "shall extend to any _ person or persons whose husband or wife shall be continually remaining beyond the seas by the space of seven years together, or whose husband or wife shall absent him or herself the one from the other, by the space of seven years together, in any parts within His Majesty's dominions, the one...
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