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An infant will be admitted to defend as landlord by guardian. Doe d. Sanderson v. Roe T. T., 3 & 4 Vic. (a)

An infant plaintiff can sue out a writ of ejectment in his own name; but after appearance entered, he cannot take any further step without having a next friend appointed; and any such further proceedings in the infant's own name will be set aside. Campbell v. Mathewson, 5 P. R. 91, C. L. Chamb.-Hagarty.

An estate being settled on the wife for life, with remainder to her children, the husband entered on the wife's death in 1832, and remained in possession till his death. The eldest son attained his age in 1836, and in 1855 filed a bill against the devisee of his father; it was held that the son was not barred by this section. It was contended that the plaintiff's right was barred, as he had been of age more than ten years, his right having accrued on the death of his mother in 1832. It was held, the reasonable inference was that the father entered on behalf of his children as their guardian, which was totally different from the case of a mere stranger entering upon property under similar circumstances. Thomas v. Thomas, 2 Kay & J. 79.

A testator who died in 1833 gave all his property to his two daughters, and appointed his brother and another executors of his will, and trustees for his wife and children. The will having been attested by only two witnesses, the real estate descended upon his two daughters, one of whom died an infant. In 1833, J., one of the executors named in the will, entered into the receipt of the rents, and paid interest on a mortgage affecting the estate. Thirty years afterwards, on a question as to whether the claim of the infant's heir was barred as against the claim of J.'s heir, it was held that, in the absence of express evidence to the contrary, J. must have been presumed to have entered on

(a) This case is taken from Robinson & Joseph's Digest, and does not appear to be reported.

behalf of the infants, and therefore time did not run against them. Pelly v. Bascombe, 4 Giff. 390; on appeal, 13 W. R. 306.

"Lunatic." Vide Fulton v. Creagh, 3 J. & Lat. 329. Held, ou a bill filed by a judgment creditor of the lessees, that the latter had not acquired either the fee simple subject to a perpetual rent equal to the rent reserved, or a right to a renewal by reason of the Statute of Limitations. (3 & 4 Will. IV. cap. 27), length of time, or the proceedings in the lunacy matter, and that the profits received by the heir of the lessee from 1836 to 1842 were not assets of the lessee.

In the Imperial Act, 37 & 38 Vic. cap. 57, s. 4, the following words are found: "The time within which any such entry may be made, or any such action or suit may be brought, as aforesaid, shall not in any case after the commencement of this Act be extended or enlarged by reason of the absence beyond seas, during all or any part of that time of the person having the right to make such entry, or to bring such action or suit, or of any person through whom he claims."

Our legislature have only thought it necessary to leave out the words "coverture" and "absence beyond seas," without inserting anything similar to the Imperial Act.

In the case of Watson v. England, 14 Sim. 28, which was a case where a girl left her father's house and was not heard from for over seven years, is it to be presumed she was dead? Held, a person ought not to be presumed to be dead from the fact of his not having been heard of for seven years, if the other circumstances of the case render it probable that he would not have been heard of, if alive. The old law relating to the presumption of death is daily becoming more and more untenable in consequence of the increased facility of travelling. The effect of circumstances as to the presumption of death must be taken into consideration in every case.

A reference was made to the Master to inquire whether A. B. was living or dead. He reported certain facts and findings on stated evidence, shewing that after diligent inquiry nothing had been heard of A. B. for more than seven years; and he found that he was not able to state to the Court whether A. B. was living or dead. On a petition to confirm the report, the Court read and considered the evidence, and came to a conclusion presuming the death. Grissall v. Stelfox, 9 Jur. 890; Wilcock v. Purchase, 9 Jur. 891.

The presumption of death after seven years' absence does not arise where the probability of intelligence is rebutted by circumstances. Bowden v. Henderson, 2 Sm. & Giff. 360; and see McMahon v. McElroy, Ir. Rep. 5 Eq. 1.

In Webster v. Birchmore, 13 Ves. 362, the presumption of death from length of time was held to have relation to the commencement of the period of uncertainty as to the existence of the party when he was proved to have been in a desperate state of health, and was to have returned to his relation in six months.

A party was presumed to have died at a particular time during the seven years, that particular time being the hurricane months, when he was proved to have left Demerara before their expiration. Sillick v. Booth, 1 Y. & Coll. N. C. 117; see also Re Beasney's Trusts, L. R., 7 Eq. 498.

As to presumption of survivorship, vide Re Tindall, 30 Beav. 151. A son, first tenant in tail in remainder, left this country on the 11th April, 1858, and was never afterwards heard of. His father, tenant for life, died on the 30th May, 1858. Held, in 1872, that it should be presumed that the son survived the father. Pennefather v. Pennefather, Ir. Rep. 6 Eq. 171. Vide Lakin v. Lakin, 34 Beav. 443.

Where two persons die by the same accident at the same time, it is presumed that they died at the same moment,

and evidence must be given of survivorship. Satterthwaite v. Powell, 1 Curt. 705. But in Sillick v. Booth, 1 Y. & Coll. C. C. 117, it was held that evidence of health might be given. This case is doubtful. 1 Taylor on Evidence,

203.

The testator and his wife were shipwrecked and drowned at sea, one wave sweeping them both away. It was he'd, 1st, That the onus of proof that the husband was the survivor was upon the legatee; 2nd, That it was requisite to produce positive evidence in order to enable the Court to pronounce in favour of the survivorship; and 3rd, That no such evidence having been produced, the next of kin was entitled. Underwood v. Wing, 4 DeG. M. & G. 631; 1 Jur. N. S. 169.

By the law of England, the question of survivorship, in cases of the above description, is matter of evidence and not of positive enactment and regulation (varying according to the ages and sex of the persons dying in the same shipwreck), as it is in the French Code; and in the absence of evidence, there is no conclusion of law on the subject. Ibid.

There is no presumption of law arising from age and sex as to survivorship among persons whose death is occasioned by one and the same cause. Nor is there any presumption of law that all died at the same time. The question is one of fact, depending wholly upon evidence; and if the evidence does not establish the survivorship of anyone, the law will treat it as a matter incapable of being determined. Wing v. Angrave, 8 H. L. C. 183.

We refer to the French law on the subject, as laid down in the Code Civil of Lower Canada.

It seems more just that the ruling in Sillick v. Booth should prevail, and that evidence of probabilities as to age, sex and health should be admitted, even if it would not be better to settle the matter by a positive enactment, or by introducing the French system, which is as follows (Code

Civil du Bas Canada, Article 108): The presumptions of death arising from absence, whatever be its duration, do not apply in the case of marriage; the husband or wife of the absentee cannot marry again without producing positive proof of the death of such absentee. See also the following cases on this point: Gen. Stanwix's Case, Fearne's Post. Works, 38; Rex. v. Dr. Hay, 1 W. Bla. 640; Swinburn, pt. vii. s. 33; Wright v. Netherwood, 2 Salk. 593; Bradshaw v. Toulmin, 2 Dick. 633; Hitchcock v. Beardsley, West's Rep. t. Hardwicke, 445; Mason v. Mason, 1 Mer. 308; Taylor v. Diplock, 2 Phill. Ecc. C. 261; In bonis Selwyn, 3 Hagg. Ecc. Rep. 741; Colvin v. The King's Proctor, 1 Hagg. Ecc. Rep. 92.

The curious "Enoch Arden" case of McArthur v. Eagleson, determined by the Court of Queen's Bench in June, 1878, demands attention. (a)

The plaintiff claimed as patentee of the Crown. The defendant, besides denying the plaintiff's title, asserted title by length of possession, under William Davidson, who took possession in 1853, and continued in possession till 1872, when he conveyed the said land to the Canada Permanent Loan and Savings Company by mortgage dated the 10th of February, 1872, under which mortgage the Company took possession from Davidson in May, 1875, and continued thereon until March, 1876, when they sold, and conveyed the land to the defendant, by deed dated 28th of March, 1876, under which he took possession, and has remained in possession ever since.

The cause was tried at the Fall Assizes at London, 1877, before the Chief Justice of Queen's Bench, without a jury.

Plaintiff was married in 1845, and left the country in 1847. He left a wife and daughter on the land, and did not write at all to his wife, nor to any of his relations; nor did he communicate with any one in this province; nor did he come back to Canada till 1877. His wife married a man

(a) Reported.

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