nizance. But if the bond be conditioned, that the obligor shall perform all the agreements set down by A., or carry away all the marl in a certain close, he is not estopped by this general condition from saying, that no agreement was set down by A., or that there was no marl in the close. Neither does this doctrine apply to that which is mere description in the deed, and not an essential averment such as the quantity of land; its nature, whether arable or meadow; the number of tons in a vessel chartered by the ton; or the like; for these are but incidental and collateral to the principal thing, and may be supposed not to have received the deliberate attention of the parties.1

§ 27. Admissions. In addition to estoppels by deed, there are two classes of admissions which fall under this head of conclusive presumptions of law; namely, solemn admissions, or admissions in judicio, which have been solemnly made in the course of judicial proceedings, either expressly, and as a substitute for proof of the fact, or tacitly, by pleading; and unsolemn admissions, extra judicium, which have been acted upon, or have been made to influence the conduct of others, or to derive some advantage to the party, and which cannot afterwards be denied without a breach of good faith. Of the former class are all agreements of counsel, dispensing with legal proof of facts.1 So if a material averment, well pleaded, is passed over by the adverse party, without denial, whether it be by confession, or by pleading some other matter, or by demurring in law, it is thereby conclusively admitted. So also the payment of money into court, under a rule for that purpose, in satisfaction of so much of the claim as the party admits to be due, is a conclusive admission of the character in which the plaintiff sues, and of his claim to the amount paid. The latter class comprehends, not only all those declarations, but also that line of conduct by which the party has induced others to act, or has acquired any advantage to himself. Thus, a woman cohabited with, and openly recognized, by a man, as his wife, is conclusively presumed to be such, when he is sued as her husband, for goods furnished to her, or for other civil liabilities growing out of that relation. So where the sheriff returns any thing as fact, done in the course of his duty in the service of a precept, it is conclusively presumed to be true against him. And if one party refers the other to a third person for information concerning a matter of mutual interest in controversy between them, the answer given is conclusively taken as true, against the party referring. This subject will hereafter be more fully considered, under its appropriate title.8

1 See infra, §§ 169, 170, 186, 204, 205; Kohn v. Marsh, 3 Rob. (Louis.) 48.

2 Young v. Wright, 1 Campb. 139; Wilson v. Turner, 1 Taunt. 398. But if a deed is admitted in pleading, there must still be proof of its identity. Johnson v. Cottingham, 1 Armst. Macartn. & Ogle, 11.

3 Cox v. Parry, 1 T. R. 464; Watkins v. Towers, 2 T. R. 275; Griffiths v. Williams, 1 T. R. 710. [See infra, § 205, vol. ii. § 600.]

4 See infra, §§ 184, 195, 196, 207, 208. 5 Watson v. Threlkeld, 2 Esp. 637; Monro v. De Chemant, 4 Campb. 215; Robinson v. Nahon, 1 Campb. 345; post, § 207.

6 Simmons v. Bradford, 15 Mass. 82.

7 Lloyd v. Willan, 1 Esp. 178; Delesline v. Greenland, 1 Bay, 458; Williams v. Innes, 1 Camp. 364; Burt v. Palmer, 5 Esp. 145.

8 See infra, §§ 169 to 212.

§ 28. Infants and Married Women. Conclusive presumptions of law are also made in respect to infants and married women. Thus, an infant under the age of seven years is conclusively presumed to be incapable of committing any felony, for want of discretion; and, under fourteen, a male infant is presumed incapable of committing a rape.2 A female under the age of ten years is presumed incapable of consenting to sexual intercourse.3 Where the husband and wife cohabited together, as such, and no impotency is proved, the issue is conclusively presumed to be legitimate, though the wife is proved to have been at the same time guilty of infidelity. And if a wife act in company with her husband in the commission of a felony, other than treason or homicide, it is conclusively presumed, that she acted under his coercion, and consequently without any guilty intent.5

§ 29. Survivorship. Where the succession to estates is concerned, the question, which of two persons is to be presumed the survivor, where both perished in the same calamity, but the circumstances of their deaths are unknown, has been considered in the Roman law, and in several other codes; but in the common law, no rule on the subject has been laid down. By the Roman law, if it were the case of a father and son, perishing together in the same shipwreck or battle, and the son was under the age of puberty, it was presumed that he died first, but, if above that age, that he was the survivor; upon the principle, that in the former

14 Bl. Comm. 23. [See post, vol. iii. § 4.]

21 Hal. P. C. 630; 1 Russell on Crimes, 801; Rex v. Phillips, 8 C. & P. 736; Rex v. Jordan, 9 C. & P. 118. But see post, vol. iii. §§ 4, 215].

8 1 Russell on Crimes, 810.

4 Cope v. Cope, 1 Mood. & Rob. 269, 276; Morris v. Davies, 3 C. & P. 215; St. George v. St. Margaret, 1 Salk. 123; Banbury Peerage case, 2 Selw. N. P. (by Wheaton), 558; s. c. 1 Sim. and Stu. 153; Rex v. Luffe, 8 East, 193. [Sullivan v. Kelley, 3 Allen (Mass.), 148. See also post, vol. ii. § 150 and n.] But if they lived apart, though within such distance as afforded an opportunity for intercourse, the presumption of legitimacy of the issue may be rebutted. Morris v. Davis, 5 C. & Fin. 163. Non-access is not presumed from the fact, that the wife lived in adultery with another; it must be proved aliunde. Regina v. Mansfield, 1 G. & Dav. 7. Post, § 81.

5 4 Bl. Comm. 28, 29; Anon., 2 East, P. C. 559. [The better opinion now seems to be, that between the ages of seven and fourteen it is a question for a jury on the evidence, whether an infant has a guilty knowledge that he is doing wrong, whether he is on trial for a felony or a misdemeanor. Russ. C. & M. 1-5; Rex v. Owen, 4 C. & P. 236. But in cases not necessarily involving guilty knowledge, as under an indictment for non-repair of a road, such a question does not arise, and there is no presumption prima facie or otherwise that he is not guilty. Rex v. Sutton, 3 A. & E. 517. So in the case of married women, the presumption of coercion is only prima facie subject to be controlled by evidence that the wife intervened voluntarily and not by compulsion. Rex v. Hughes, 2 Lewin, C. C. 229; Rex v. Pollard, 8 C. & P. 553; Reg. v. Stapleton, 1 Jebb, C. C. 93. See also post, vol. iii. ᎦᎦ 4, 7.]

case the elder is generally the more robust, and, in the latter, the younger.1 The French code has regard to the ages of fifteen and sixty; presuming that of those under the former age the eldest survived; and that of those above the latter age the youngest survived. If the parties were between those ages, but of different sexes, the male is presumed to have survived; if they were of the same sex, the presumption is in favor of the survivorship of the younger, as opening the succession in the order of nature.2 The same rules were in force in the territory of Orleans at the time of its cession to the United States, and have since been incorporated into the code of Louisiana.3

§ 30. Survivorship. This question first arose, in common-law courts, upon a motion for a mandamus, in the case of General Stanwix, who perished, together with his second wife, and his daughter by a former marriage, on the passage from Dublin to England; the vessel in which they sailed having never been heard from. Hereupon his nephew applied for letters of administration, as next of kin; which was resisted by the maternal uncle of the daughter, who claimed the effects upon the presumption of the Roman law, that she was the survivor. But this point was not decided, the court decreeing for the nephew upon another ground; namely, that the question could properly be raised only upon the statute of distributions, and not upon an application for administration by one clearly entitled to administer by consanguinity. The point was afterwards raised in chancery, where the case was, that the father had bequeathed legacies to such of his children as should be living at the time of his death; and he having perished, together with one of the legatees, by the foundering of a

1 Dig. lib. 34, tit. 5; De rebus dubiis, 1. 9, §§ 1, 3; Ib. 1. 16, 22, 23; Menochius de Præsumpt. lib. 1, Quæst. x. n. 8, 9. This rule, however, was subject to some exceptions for the benefit of mothers, patrons, and beneficiaries.

2 Code Civil, §§ 720, 721, 722; Duranton, Cours de Droit Français, tom. vi. pp. 39, 42, 43, 48, 67, 69; Rogron, Code Civil Expli. 411, 412; Toullier, Droit Civil Français, tom. iv. pp. 70, 72, 73. By the Mahometan law of India, when relatives thus perish together, "it is to be presumed that they all died at the same moment, and the property of each shall pass to his living heirs, without any portion of it vesting in his companions in

vessel on a voyage from India

misfortune." See Baillie's Moohummudan Law of Inheritance, 172. Such also was the rule of the ancient Danish law. "Filius in communione cum patre et matre denatus, pro non nato habetur." Ancher, Lex Cimbrica, lib. 1, c. 9, p. 21.

8 Civil Code of Louisiana, art. 930933; Digest of the Civil Laws of the Territory of Orleans, art. 60-63.

The

4 Rex v. Dr. Hay, 1 W. Bl. 640. matter was afterwards compromised, upon the recommendation of Lord Mansfield, who said he knew of no legal principle on which he could decide it. See 2 Phillim. 268, in n.; Fearne's Posth. Works, 38.

to England, the question was, whether the legacy was lapsed by the death of the son in the lifetime of the father. The Master of the Rolls refused to decide the question by presumption, and directed an issue, to try the fact by a jury. But the Prerogative Court adopt the presumption, that both perished together, and that therefore neither could transmit rights to the other." In the absence of all evidence of the particular circumstances of the calamity, probably this rule will be found the safest and most convenient; but if any circumstances of the death of either party can be proved, there can be no inconvenience in submitting the question to a jury, to whose province it peculiarly belongs. § 31. Presumptions to the law of nations. Conclusive presumptions of law are not unknown to the law of nations. Thus, if a neutral vessel be found carrying despatches of the enemy between different parts of the enemy's dominions, their effect is presumed to be hostile. The spoliation of papers, by the captured party, has been regarded, in all the States of Continental Europe, as conclusive proof of guilt; but, in England and America, it is open to explanation, unless the cause labors under heavy suspicions, or there is a vehement presumption of bad faith or gross prevarication.5

§ 32. Based on expediency. In these cases of conclusive presumption, the rule of law merely attaches itself to the circumstances, when proved; it is not deduced from them. It is not a rule of in

1 Mason v. Mason, 1 Meriv. 308. 2 Wright v. Netherwood, 2 Salk. 593, n. (a) by Evans; more fully reported under the name of Wright v Sarmuda, 2 Phillim. 266-277, n. (c); Taylor v. Diplock, 2 Phillim. 261, 278, 280; Selwyn's case, 3 Hagg. Eccl. 748. In the goods of Murray, 1 Curt. 596; Satterthwaite v. Powell, 1 Curt. 705. See also 2 Kent's Comm. 435, 436 (4th ed.), n. (b). In the brief note of Colvin v. H. M. Procurator-Gen., 1 Hagg. Eccl. 92, where the husband, wife, and infant child (if any) perished together, the court seem to have held, that the prima facie presumption of law was that the husband survived. But the point was not much moved. It was also raised, but not disposed of, in Moehring v. Mitchell, 1 Barb. Ch. 264. The subject of presumed survivorship is fully treated by Mr. Burge, in his Commentaries on Colonial and Foreign Laws, vol. iv. pp. 11–29. In Chancery it has recently been held, that a presumption of priority of death might be raised from the comparative age, health, and strength of the parties; and,

therefore, where two brothers perished by shipwreck, the circumstances being wholly unknown, the elder being the master and the younger the second mate of the ship, it was presumed that the latter died first. Sillick v. Booth, 1 Y. & C. New Cas. 117. [In Underwood v. Wing, 31 Eng. Law & Eq. 293, where a husband, wife, and children were swept from the deck of a vessel by the same wave, and went down together, it was held that, in the absence of evidence, the court would not presume that the husband survived the wife. 8. c. affirmed, 4 De Gex, M. & G. 1. Courts of probate, equity, and law alike refuse to presume simultaneous death or survivorship in the absence of evidence. Wing v. Angrave, 8 H. of L. 183; Smith v. Crown, 7 Fla. 81.]

8 It was so held in Coye v. Leach, 8 Metc. 371. And see Moehring v. Mitchell, 1 Barb. Ch. 264.

4 The Atalanta, 6 Rob. Adm. 440.

5 The Pizarro, 2 Wheat. 227, 241, 242, n. (e); The Hunter, 1 Dods. Adm. 480, 486.