Spencer v. Roper

• Decision Date: 30 June 1852
• Citation: 35 N.C. 333,13 Ired. 333
• Parties: PELEG W. SPENCER v. FREDERIC S. ROPER AND OTHERS.
• Court: North Carolina Supreme Court

13 Ired. 333

35 N.C. 333

PELEG W. SPENCER

v.FREDERIC S. ROPER AND OTHERS.

Supreme Court of North Carolina.

June Term, 1852.

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 his death. Where a precise time is relied upon, it must be supported by suffieient evidence before the jury, besides the lapse of seven years, since last heard of.

The case of the State v. Moore, 11 Ire. 160, cited and approved.

Appeal from the Superior Court of Law of Hyde County, at the Spring Term 1842, his Honor Judge SETTLE presiding.

The facts in this case were the same as those reported in State v. Moore, 11 Ire. 161: and the only question was, as to the time of the death of a party, who had been absent seven years and not heard from; the presumption of death should apply.

Shaw for the plaintiff .

Donnell for the defendant .

NASH, J.

When the case of Peleg Spencer vs. R. Moore, and others, was before this Court at June Term 1850, an opinion was expressed by the Court, consisting of the same members that it now does, upon the question presented in this case, 11 Ire. 160. It is true that it was then incidentally before us, and the decision of the cause was not made to rest upon it. His Honor, the Chief Justice, in delivering the opinion of the Court, observes, “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 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 the case of Doe and Nepeun 5 Ban and Ad. 886, the principle was more elaborately argued than any where else, and there it was laid down as stated above. The judgment was confirmed in error upon an appeal, 2 Mason...