
    Samuel Newman, Administrator, versus George Jenkins.
    The mere absence of a person from the Commonwealth without being heard from, for any period short of seven years, is not sufficient to raise a legal presumption of his death.
    Tlius, where a promissory note was taken by an agent in the name of his principal, who had sailed for the West Indies or elsewhere and a market, nineteen months before, and had never since been heard from, the note was held to be binding upon the promisor.
    But letters of administration having been granted upon the estate of the promisee in three years after he sailed, and the administrator having brought a suit upon the note, and no plea in abatement having been filed, the grant of administration was held to be conclusive evidence, in such action, of the death of the promisee. /
    Assumpsit on a promissory note. Upon a case stated it appeared that Samuel Chandler, the plaintiff’s intestate, sailed from Boston about the 15th of September, 1826, for one of the West India islands or elsewhere and a market, and that he has not been heard from since that time. He left money in the hands of one Mycall, his attorney and agent,'who on April 7th, 1828, at Newburyport, lent the same to one Smith, taking therefor the note now in suit, signed by Smith and by the defendant as his surety, payable to Chandler or bis order on demand. Letters of administration upon Chandler’s estate were granted to the plaintiff in August 1829.
    JVb». 18<Zi.
    
      Gerrish, for the defendant,
    contended that Chandler must be presumed either to have died within one year from the time he left Boston, and in that case the note was taken after My-call’s authority to lend the money and take the note had terminated ; or to be still living, seven years not having elapsed since he sailed, and then the action should have been brought in his own name. Doe v. Jesson, 6 East, 80.
    Marston, for the plaintiff,
    cited Rex v. Twyning, 2 Barn. & Ald. 386 ; Lessee of Battin v. Bigelow, 1 Peters’s Circ. C. Rep. 452 ; 1 Phil. Ev. (2d edit.) 152; Miller v. Beates, 3 Serg. & Rawle, 490.
    
      Nov. 20Ih.
    
   Per Curiam.

The mere absence of a person for the space of seven years, without being heard from, furnishes ground for presuming him to he dead ; but an absence for a shorter period is not sufficient to raise that presumption.* The death of Chandler, therefore, cannot be presumed to have taken place before the note was given, as he had then been absent less than nineteen months. The burden was upon the defendant to prove that he was dead at that time.

It is said, however, that if the presumption of Chandler’s death cannot arise until after the lapse of seven years, the plaintiff had no right to sue as his administrator. But in this point of view the fact of thoe death does not stand on a presumption, but on an adjudication of the probate court. • That court could not grant administration without being satisfied that Chandler was dead, and so long as the letters of administration stand unrecalled, they are evidence of the death. There might be a question as to the effect which would be produced upon the action by his returning alive, but that point it is not necessary to consider. The letters of administration are conclusive proof of his death, as the case stands. If the defendant intended to contest that fact, he should have filed a plea in abatement.

Defendant defaulted. 
      
       See Spurr v. Trimble, 1 Marshall, (Ken.) 278; Hall v. Commonwealth, Hardin, 479; Innis v. Campbell, 1 Rawle, 373 ; Woods v. Woods, 2 Bay, 476; Wambough v. Schank, Pennington, 229; M'Comb v. Wright, 5 Johns. Ch. R. 263; Doe v. Nepean, 5 Barn. & Adolph. 86; Battin v. Bigelow, Peters’s Circ. C. R. 452; Roscoe’s Crim. Ev. 19, 20.
     
      
       Seel Phil Ev. (Cowen & Hill’s ed.) 343, 344; Moors v. De Bernales, 1 Russell, 300, 306, 307.
     