Smith v. Knowlton
Superior Court of New Hampshire
Asstjmpsit for money had and received. The defendant pleaded the general issue, and filed a brief statement, setting forth that a judgment was recovered by Meshech B. Trundy against him, as trustee of Josiah D. Smith, the plaintiff’s intestate, August term, 1831, upon which he should rely as a bar to this action.
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Asstjmpsit for money had and received. The defendant pleaded the general issue, and filed a brief statement, setting forth that a judgment was recovered by Meshech B. Trundy against him, as trustee of Josiah D. Smith, the plaintiff’s intestate, August term, 1831, upon which he should rely as a bar to this action. It appeared that the intestate, on the 27th of September, 1828, sailed as one of the crew of the schooner Sarah Atkins, from the port of Portsmouth, to the south seas, on a sealing voyage—that a letter was received from him, dated on board said vessel, at the Falkland Islands, April…
1Opinion of the CourtParker, C. J.
We are not aware of any rule or principle on which we can presume that Josiah D. Smith was dead in September, 1831, when the judgment was rendered against him. in the action in which the defendant was charged as his trustee.
The presumption is that a party continues to live, until some evidence is offered to rebut it. 2 East’s R. 313, Wilson vs. Hodges. But evidence that he has not been heard of for the term of seven years, rebuts this presumption of the duration of life. 6 East’s R. 85, Doe vs. Jesson; 2 Bay’s R. 479, 480, Woods vs. Admrs. of Woods; 2 Camp. R. 113, Hopewell vs. DePinna; 4…
2Cases cited2 opinions
- Gorrill v. WhittierSuperior Court of New Hampshire · 1825
- Hoit v. MolonySuperior Court of New Hampshire · 1821
3Cited by16 opinions
- Sherman v. Minnesota Mutual Life InsuranceSupreme Court of Minnesota · 1934
- Kittredge v. EmersonSuperior Court of New Hampshire · 1844
- Lukens v. Camden Trust CompanyNew Jersey Superior Court Appellate Division · 1948
- Dustin v. Cruise Craft, Inc.District Court, D. New Hampshire · 1980
- Russell v. PerrySuperior Court of New Hampshire · 1843
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