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As the of their Deaths, renders it impossible to prove
Latest revision as of 13:29, 6 January 2021
As the Manner of their Deaths, renders it impossible to prove wch of the two was the longest liver, by positive Evidence, the best that can be had must govern, and that is Presumption from Circumstances. It seems to be a good Rule, That where certain Facts are given or are proved, and out of those Facts, such Circumstances arise, as afford a violent Presumption such should be taken as possitive Evid. A Vive Voce Evid. may be mistaken, may be deceived or may wickedly intend to deceive others, but Circumstances cannot lie. The Facts proved. All were drown'd together. Mrs. Banks was found the farthest from the Place they enter'd at, the child who was the smallest and weakest, nearest. And the Boy who was larger and stronger, still farther down the River than the child. From these Circumstances, proved, arises a violent Presumption, that the child being the weakest, could not resist the Violence of the Stream so long as the Boy. & therefore being sooner drown'd, was sooner fill'd with Water, & tho lighter, of course sooner sunk, the Boy according to his Strength kept up longer. As to Mrs. Banks, tis not impossible but that she might swim some Distance down Stream, or might be kept up by her Cloths, sometime before she was drown'd, or if she could not swim, she had more Strength to struggle longer, and when drown'd & fill'd with Water, must necessarily, from the known Laws of Gravitation, sink sooner than a lighter Body. We expect that in their Defence they will attempt first to convince the Jury that Mrs. Banks was first drown'd, tho' the strongest. For that she might most susceptable of Fear, or being most sensible of Danger, was soonest frighted, and soonest drown'd; and supposing her Body to be more rarified than the others, was most boyant, and would therefore swim longest. How these Suppositions will weigh with the Presumptions arising as above, you will judge. Should the Daughter be judged to be the longest Liver, some of Banks's Family, will be Heir to her. The other Part of their Defence, will be, That J Robinson acted as Ador or Exor to Banks when the Neg's. were sold as his Est. and not then mentioning his (expected) claim, he has given it up & can't now recover, & perhaps may cite a case, where an Heir apparent was privy to or was a Witness to a Conveyance of the Est. he expected, & not making Claim, was judged to have forfeited.