Till within a few years before the period in question, the law of England regarded the act done by Mr. Steggars as amounting only to a breach of trust, and consequently subjecting him to no criminal liability; on the ground that the £700 never having been actually in his master's possession, could not be the subject of a felonious taking. The alarming consequences of this doctrine led to the passing of stat. 39 Geo. III. c. 85, [passed on the 12th July 1799,] which declared such an act of embezzlement to be felony, punishable with fourteen years' transportation: this was lately repealed, but re-enacted by stat. 7 and 8, Geo. IV. c. 29, § 47, [passed on the 21st June, 1827,] on the occasion of consolidating that branch of the criminal law.—See 4 Coleridge's Blackst. Comment. p. 231 (note).
Note 25 [Page 442].
The popular maxim that "possession is nine-tenths of the law," is founded on the salutary and reasonable doctrine of the law, that the party in possession of property is presumed to be the owner until the contrary shall have been proved. Consider how intolerable, and, in fact, destructive of civil society would be an opposite rule—if every one in the enjoyment of property were liable to be called upon to explain to any one challenging his right, how that right had been acquired! By the operation of the rule laid down in the text, a defendant in ejectment may (except in the case of landlord and tenant) always defeat the action, simply by showing the real title to be in some third party—without showing that the defendant holds possession with the consent, or under the authority of the real owner.—(Roe v. Harvey, 4 Burr. 2484; Doe v. Barber, 2 T. R. 749.) The defendant's evidence is thus altogether confined to falsifying his adversary's proofs, or rebutting the presumptions which arise out of them.—Adams on Ejectment, p. 319.—(3d Ed.)
Note 26 [Page 443].
See the note to Vol. II., Chapter V.
Note 27 [Page 443].
Lynx is here glancing at a rule of the Roman law on a point of great difficulty, interest, and importance—i. e. where two persons above the age of puberty perished by the same accident, the younger was presumed to have been the survivor; but if one was under the age of puberty, the other was presumed to have been the survivor.—(Dig. lib. 34, tit. 5, §§ 9, 22, 23.) It is very curious to see how this question is dealt with in modern times. The Code Civile (in France) adjusts the presumption to specific periods of life. If those who perished were all under 15 years of age, the eldest is presumed to have survived; if all above 60 years, the youngest. If some under 15, and others above 60, the former shall be presumed to have survived. If all were between 15 and 60 years of age, the male, (when the ages are equal, or within a year of being so) shall be presumed the survivor. If of the same sex, that presumption shall be admitted which opens the succession in the order of nature—of course the younger being presumed to have survived the elder.—(Code Civ. §§ 720-722.) It has been objected, that, though these rules are generally equitable, they are imperfect: for a man above sixty ought surely to be held to have survived a mere infant; and no provision is made for the case of persons under 15, and under 60 years of age perishing together. By the Mohammedan law of India, "when relations perish together, it is to be presumed that they all died at the same moment, and the heir of each immediately succeeds." The difficulty of the case arises, of course, from the circumstance of there being no evidence whatever as to the actual fact of survivorship. Our English law has not adopted any definite rule on the subject, but leans in favor of the survivorship of the party possessed of the property in dispute; and some regard seems to be had to the probability of the survivorship of the stronger party. Several very interesting cases of this kind have arisen in this country; and, generally speaking, our courts appear to have required some evidence of the fact. A singular case occurred in Queen Elizabeth's time, (1596.) Father and son were hanged at the same time, in one cart; being joint tenants of property, which, on their death, was to go to the son's heirs. According to one report (Noy) the father's feet were seen moving after the son's death; but other witnesses swore to the son's "shaking his legs" after his father's death. This the jury believed; found that the son survived; and his widow was therefore held entitled to her dower!—(Broughton v. Randall, Cro. El., p. 502.)
Note 28 [Page 443].
Chapter X., ante, [p. 411].