Presumption as between vendor and purchaser.

(m) See stat. 3 & 4 Vict. c. 92, amended by '21 & 22 Vict. c. 25; Taylor, Evidence. Sec. 1354, 5th cd. (n)Above, p. 131.

(o) As to the evidence admissible in matters of pedigree, see Taylor. Evidence, Sec. 571 sq., pp. 569 sq., 5th ed.; Stephen, Evidence. Art. 31; 1 Dart, V. A P. 330-351, 5th ed.; 381-397, 6th ed.; 376-386, 7th ed.

(p) See Sug. V. & P. 418,421, also 404; 1 Dart, V. & P. 336, 338, 340, 343, 5th ed.; 381, 383, 385, 389, 6th ed.; 376. 378. 380, 383, 7th ed.

(q) See previous note.

(r) 1 Dart, V. & P. 328, 6th ed.; 372, 6th ed.; 368, 7th ed.

No presumption of death as between vendor and purchaser.

(s) See below, Chap. XIX. Sec. 3.

(t) See Jeakes v. White, 6 Ex. 873; Simmons v. Heseltine, 5 C. B. N. S. 554, 571; Clarke v. Willott, L. P. 7 Ex. 313; Sug. V. & P. 400, 405.

(u) See note (y), at end.

(x) Above, p. 134.

(y) Coventry, Conveyancers' Evidence, 286; Sug. V. & P. 418; 1 Dart, V. & P. 340, 5th ed.; 385, 6th ed.; 380, 7th ed. As between adverse litigants for the possession of property or in respect of other matters, there is a presumption of law that a person is dead when he has not been heard of for seven years by those with whom he would naturally have communicated, if alive, unless the circumstances be such as to account for the absence of communication without presuming death: but no presumption of law arises with respect to the time of such death (i.e., that he died at any particular but this presumption may be rebutted by evidence that the husband and wife have not had sexual intercourse within such period previous to the child's birth as would be necessary to produce the gestation in question (c).

As between adverse litigants, the presumptions as to marriage and legitimacy are these: - When a man and a woman have lived together as and with the reputation of being man and wife, it is presumed (unless the contrary be shown) that they were lawfully married and not living in a state of concubinage (z). And where it is established that a marriage ceremony took place, the like presumption arises in favour of the existence of every circumstance necessary to its validity (a). There is also a presumption that every child born in wedlock - that is, at any time during the continuance of the marriage between its parents, no matter how soon after the marriage ceremony (b) - is the child of the husband:

Presumption of marriage.

Presumption of legitimacy or paternitymoment of time during those years); and where a person has disappeared and has not been heard of for less than seven years, no presumption of law arises that he has since continued to live: Nepean v. Doe, 2 M. & W. 894: R. v. Lumley, L. R. 1 C. C. R. 196: Re Phene's Trust, L. R. 6 Ch. 139; He Lewes' Trusts, L. R. 6 Ch. 356; Re Rhodes, 36 Ch. D. 586; Re Aldersey, 1905, 2 Ch. 181; Stephen, Evidence, Art. 99: see also Prudential Assurance Co, v. Edmonds, 2 App. Cas. 487. Also, when two or more persons meet their death in some common calamity (such as a shipwreck or a massacre), there is no presumption of law arising from age or sex that any one of them survived the other or others, neither is there any presumption of law that they died at the same time: Underwood v. Wing, 4 De G. M. & G. 633; Wing v. Angrave, 8 H. L. C. 183; Re Alston, 1892, P. 142; Re Beynon, 1901, P. 141. And there is no presumption of law that a person, who is dead, left no issue: Re Jackson, 1907, 2 Ch. 354. All the above-mentioned matters, as to which no presumption of law arises, must be proved positively: but the jury or other proper tribunal, to determine questions of fact, may draw an inference (often styled a presumption) of fact in respect thereof, if evidence sufficient to warrant such inference be submitted; see the cases above cited. So also where a man has disappeared in circumstances which make it likely that he has met his death, an inference of fact may be drawn that he is dead, notwithstanding that a far shorter space of time than seven years has elapsed since his disappearance: Sillick v. Booth, 1 Y. & C. C. C. 117: Re Beasney's Trusts, L. R. 7 Eq. 498; Hickman v. Upsall, L. R. 20 Eq. 136; fit Alston, ubi sup.; Re Matthews, 1898, P. 17; of. Ommaney v. Stilcell, 23 Beav. 328. As to the difference between presumptions of law and of fact, see Taylor. Evidence. Sec. 61, 62, 94-97, 169-171. 5th ed.; Stephen, Evidence, Art. 1 and note 1.

(z) Piers v. Piers, 2 H. L. C. 331, 362-364, 370, 371, 379, 380; Breadalbane Case, L. R. 1 So. App. 182, 199, 200; Lyle v. Ell wood, L. R. 19 Eq. 98, 107; Re Shrphard, 1904, 1 Ch. 456.

(a) See cases cited in previous note: Harrison v. Southampton Corpn., 4 De G. M. & G. 137; Sastry Velaider Aronegary v. Sembecutty Vaigalie, 6 App. Cas. 364.

(b) Co. Litt. 244 a; Poulett Peerage, 1903, A. C. 395, 398.

(c) Morris v. Davies, 5 Cl. & Fin. 163, 215, 229, n., 251, 252, 260, 262, 265; R. v. Mansfield, 1 Q. B. 444; Saye & Sele Barony, 1 H. L. C. 507, 511, 612; Hawes v. Draeger, 23 Ch. D. 173, 178; Aglesford Peerage, 11 App. Cas. 3, 17; Bosvile v. A.-G., 12 P. D. 177 (appeal abandoned, 1887, W. N. 181); Burnaby v. Baillie, 42 Ch. D. 282, 297, 298. The question, whether such intercourse did take place, is one of fact to be proved in the ordinary way and to be decided by the jury or other proper tribunal for pronouncing on questions of fact: but clear evidence is required to rebut the presumption of legitimacy; the matter is not to be decided on a mere balance of probabilities. And after evidence tending to establish such intercourse (as that the husband and wife occupied the same bedroom) has been given, then no other evidence is admissible than such as tends to disprove the inference of the intercourse having taken place; see the cases above cited The fact of non-intercourse may be inferred from the conduct of the husband or wife, and their statements made at the time or afterwards are admissible in evidence as part of the res gestae and in proof of their conduct; Aylesford Peerage, 11 App. Cas. 3; Burnaby v. Baillie, 42 Ch. D. 282, 291. But neither of them is admissible as a witness, at the trial of the issue of the legitimacy of the child, to state whether the required intercourse took place or not; nor is any statement or declaration of either of them with regard to this matter admissible as direct evidence thereof; R. v. Sourton, 5 A. & E. 180; Nottingham Guardians v. Tomkinson, 4 C. P. D. 343; Hawes v. Draeger, 23 Ch. D. 173, 178; Burnaby v. Baillie, 42 Ch. D. 282, 293. In 'the second and fourth of these cases the Court declined to follow a contrary decision in Re Yearwood,s Trusts, 5 Ch. D. 545. This rule however relates only to the proof or disproof of sexual intercourse between husband and wife during their marriage; it does not prevent either of them, on the trial of the legitimacy of a child bom so soon after marriage that it must necessarily have been begotten before the marriage, from being admitted to give evidence whether such intercourse took place between them before their marriage; Poulett Peerage, 1903, A. C. 395, overruling Anon. v. Anon., 22 Beav. 481, 23 Beav. 273. Evidence of the husband or wife is also admissible in any proceeding instituted in consequence of adultery with regard to the issue, whether adultery has taken place or not; but not, it appears, on the issue of the legitimacy of any child of the wife's; Stat. 32 & 33 Vict. c. 68, s. 3; Hetherington v. Hetherington, 12 P. D. 112, 114; Evans v. Evans, 1904, P. 378. Questions of the legitimacy of any natural-bom British subject domiciled in England or Ireland or claiming any real or personal estate situate in England or of the validity of his marriage or that of his parents or grandparents may be determined in proceedings instituted in the Probate Division under the Legitimacy Declaration Act, 1858 (stat. 21 & 22 Vict. c. 93): but any decree so obtained does not prejudice any person unless he has been cited or made a party to the proceedings, or is the heir-at-law or next of kin, or other real or personal representative of or derives title under or through a person so cited or made a party, and such decree will not prejudice any person if subsequently proved to have been obtained by fraud or keepers, and purporting to be sealed or stamped with the seal of the Record Office (k).