Crawford v. Elliott — 6 Del. 465

Majority

p. 465

Elizabeth Crawford v. James Elliott, Garnishee of William B. Crawford.

Headnote

The interest or share of an heir-at-law in a recognizance in the Orphans’ Court is liable to attachment.

If a person leave or disappear, the presumption in favor of life continues until a period of seven years has elapsed without any tidings or intelligence of him; but after that the rule is reversed, and the law presumes his death, unless the contrary be shown.

This was a fi. fa. attachment case, at the suit of Elizabeth Crawford against William B. Crawford, laid in the hands of James Elliott, garnishee. Plea nulla bona.

The debt attached was the sum of $200, due the defendant in the writ from Elliott, the garnishee, on a recognizance in the Orphans’ Court, entered into by him on the purchase of a portion of the intestate real estate of his father, James Crawfqrd, deceased, who died March 3d, 1854; the recognizance was entered into September 2d, 1856, and the attachment was issued May 16th, 1856.

p. 466

It was in p^oof that William B. Crawford had left the State in 1842 or 1843, and had emigrated first to Ohio, and afterwards to Missouri, whence he removed in 1847 to California, since which time no tidings or intelligence had been had of him by any of his family or friends in this , State.

T. F. Bayard, for the garnishee,

took the ground, first, that -an attachment would not lie for the interest of an heir in a recognizance in the Orphans’ Court. State v. Huxley, 4 Harr. 344 . The condition of the recognizance, together with the remedy, which is by scire facias in the name of the State, and which can alone be sued out and prosecuted in the name of the State, and not in the name of the heir, as for a debt directly due to him, forbids in such a case the process of attachment by a creditor, because it was inconsistent with that remedy. But there was another and perhaps a better ground of objection to the recovery of the plaintiff in the attachment. It was proved that William’ B. Crawford left the State fourteen or fifteen years ago, and in 1847 removed to California, since which time nothing had been heard of him, and as the legal presump-' tian of his death arose after the lapse of seven years without any tidings of him, he must be presumed to have been dead at the time of the death of his 'father in 1854, and was consequently not an heir of his; or at all events, that he was dead at the time when the recognizance was entered into and when the attachment was issued; and if so, then he had no interest in the recognizance, and the attachment must fail. Rev. Code, 263; 2 Wend. Black. Com. 177, in note; 27 Eng. C. L. R. 42.

Patterson, for the plaintiff,

replied, and on the question of presumption as to the death of William B. Crawford, insisted that it was incumbent upon the defendant, who alleged the death, to prove it, which had not been done. Wilson v. Hodges, 2 East, 312.

p. 467

The Court,

charged the jury: It is well settled that an attachment will lie against a recognizor in the Orphans’ Court, and it has been repeatedly so recognized and ruled by the courts in this State. It was also a well-settled rule of law in England, prior to the declaration of independence, and is now recognized as a well-settled principle of law in this and other States of the Union, that if no tidings or information be had of a person for a period of seven years, he is presumed to be dead, and the burden of proof is devolved upon the party who alleges the contrary, to prove that he'is living. The rule is, that if a person leaves or disappears, the presumption in favor of life continues until a period of seven years- has elapsed without any intelligence of himbut after the seven years have elapsed without any tidings of him,, the rule is reversed, and the law presumes his death, unless the contraiy be shown. 1 Greenl. Ev., sec. 41.