3&4 Will.4, statute under section 15; and that the defendant could not resist the c. 27, s. 15. action on the ground that, having had no notice, he still continued tenant at will. (Doe d. Burgess v. Thompson, 5 Ad. & Ell. 532; 1 Nev. & P. 215.) By a marriage settlement, a husband was entitled to the moiety of an estate in fee, which moiety originally belonged to his wife during the coverture, the other moiety descended to the wife, as heiress at law to her brother. The wife afterwards died, in the husband's lifetime, without issue, and the husband, from the time of her death, in April, 1815, till a sale of the estate in November, 1838, remained in uninterrupted possession of the entire property, without making any acknowledgment of the title of any other person: it was held, that this was a case falling within the 15th section of this statute, and that, notwithstanding the husband's possession of the moiety which descended to the wife might not be adverse, the heir at law of the wife, not having made his claim within five years after the passing of the act, was barred by the statute. (Ex parte Hasell, in re Manchester Gas Act, 3 Jur. 1101; 3 Y. & Coll. 617.)

There is no saving of minority in the 15th section, and, therefore, the period of five years given by that section cannot be extended by reason of the minority of the claimant. (Scott v. Nixon, 3 Dru. & War. 388. See also on this section, Incorporated Society v. Richards, 1 Dru. & War. 289.)

Persons un

of infancy,

lunacy, co

verture or

presentatives, to be

years from

III. SAVINGS in Case of DISABILITIES.

XVI. Provided always, and be it further enacted, that der disability if at the time at which the right of any person to make an entry or distress, or bring an action to recover any land beyond seas, or rent, shall have first accrued as aforesaid (f), such and their re- person shall have been under any of the disabilities hereinafter mentioned, (that is to say,) infancy (g), coverture, allowed ten idiotcy, lunacy, unsoundness of mind, or absence beyond the determi- seas (h), then such person, or the person claiming through him, may, notwithstanding the period of twenty years hereinbefore limited, shall have expired, make an entry or distress, or bring an action to recover such land or rent, at any time within ten years next after the time at which the person to whom such right shall have first accrued as aforesaid shall have ceased to be under any such disability, or shall have died (which shall have first happened) (i).

nation oftheir

disability or death.

Effect of father's entry on

son's estate.

(f) See sections 2 and 14, ante, pp. 136, 186.

(g) 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 pro

perty under similar circumstances. Wood, V. C., observed, "Then it 3 & 4 Will.4, is said that though the entry might have been lawful in its inception, c. 27, s. 16. the retention of the property, after the children attained twenty-one, barred their right under the Statute of Limitations, but I think the better and sounder view here is, that if this gentleman entered as guardian, this court would never allow him to set up any other title to the estate. However, if it were set up, he would be in a different position as to the statute from a stranger who had so entered. Then, assuming that he ceased to continue in the position which up to that time he had held, as a father receiving the rents for his children, still the rights of the children would accrue for the first time when they respectively attained twenty-one, and each would have twenty years from such time to assert his rights, and therefore the statute had not barred such rights." (Thomas v. Thomas, 2 Kay & J. 79, 84, 85.) (k) See section 19, post, as to what places are not to be deemed beyond seas.

tion.

(i) Parke, B., observed, "This clause, it will be observed, is made Observations to operate only where the party intended to be protected is under on this secdisability at the time when the right to make the distress or bring the action first accrued; and if this be held to be the time when the last payment was made, the protection will, in many cases, be wholly illusory. Put the case, for instance, of a party regularly receiving his rent up to a given day, and becoming lunatic before the next day of payment arrives; if he should, by reason of his lunacy, omit to enforce payment of his rent for twenty years, it would seem, on all principle, that he must have been intended to be protected; but, certainly, as he was not under disability at the last time of payment, he would not come within the protection of the 16th section. Many other similar cases may be pointed out. This is, no doubt, a very serious defect, and would afford strong grounds for adopting any reasonable construction of the 3rd section, by which it might be remedied. But no construction would have that result; for, even if by a forced and difficult construction of the sixth branch of the section we were to hold that the point of time there designated was not the last actual payment, but the time when the rent first fell into arrear; yet the very same difficulty would exist in all the other cases pointed out by the statute, namely, the case of a person dying seised, and leaving an heir not under disabilities, but who should become disabled before any rent has accrued due, and the case of a person claiming under a settlement, who may be a feme sole when her title accrues, but may be under coverture before she has any title to distrain or sue for rent; and so as to the other cases provided for by the 3rd section. The same thing may be said of the 8th section. For these reasons, though we are fully sensible of the incongruities of the case, yet we feel bound to act on the plain and natural construction of the language of the 3rd section, and to hold that the right of the defendant in this case to distrain must be taken to have first accrued on the 15th day of January, 1825, when the last payment of rent was made, and so that the distress made in May, 1845, was unlawful, all right to the rent having been extinguished before that time." (Owen v. De Beauvoir, 16 Mees. & W. 567, 568; see observations of Patteson, J., in De Beauvoir v. Owen, 5 Exch. 166, Law J., 1850, Exch. Ch. 182, ante, p. 155.)

It will be observed that imprisonment is not a disability within this act. The disability of imprisonment was omitted in this section on the ground that imprisonment, whether under civil or criminal process, is of short and defined duration; and during its continuance the party has ample means of communication with friends and professional advisers. (1 Real Prop. Rep. 44.) Imprisonment is still a disability under stat. 21 Jac. 1, c. 16.

Construction of saving clause in 21

Jac. 1, c. 16.

3 & 4 Will. 4, The stat. 21 Jac. 1, c. 16, s. 2 (10 Car. 1, sess. 2, c. 6, s. 13, Ir.) c. 27, s. 16. contained a proviso, that "if any person having right of entry should be, at the time his right or title first descended, accrued, come or fallen, within the age of twenty-one years, feme covert, non compos mentis, imprisoned or beyond seas, then such person and his heir might, notwithstanding the said twenty years had expired, bring his action or make his entry, as he might have done before that act; so as such person or his heir shall, within ten years next after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, or death, take benefit of and sue forth the same; and at no time after the said ten years." In the construction of that clause, it was held that it only extended to the persons on whom the right first descended, and that when the statute had once begun to run, no subsequent disability, either voluntary or involuntary, would prevent its operation. (Doe d. Duroure v. Jones, 4 T. R. 310; and see Sturt v. Mellish, 2 Atk. 610-614; Str. 556; 1 Wils. 134.) Thus, where a tenant in tail died, with issue in tail, a feme covert, who died under coverture, leaving issue two sons, both infants, the eldest attained twenty-one, and died without issue, leaving his brother under age, who did not prosecute his claim within ten years after he attained twenty-one, nor until more than twenty years had elapsed since the right first descended he was held to be barred by the statute, on the ground that the time began to run against the eldest son when he attained twenty-one, and no subsequent disability could stop it; therefore, he and his heirs had only ten years from the time he attained twenty-one. (Cotterell v. Dutton, 4 Taunt. 826.) When the ancestor, to whom the right first accrued, died under a disability, which suspended the operation of the statute, it was held, that his heir must enter within ten years next after his ancestor's death, provided more than twenty years had elapsed from the time of the commencement of the ancestor's title to the expiration of the ten years. (Doe d. George v. Jesson, 6 East, 80.) Where an estate descended to parceners, one of whom was under a disability, which continued more than twenty years, and the other did not enter within that period, the disability of the one was held not to preserve the title of the other after the twenty years had elapsed. (Doe d. Langdon v. Rowlston, 2 Taunt. 441.)

Persons beyond seas.

It was said by Lord Chancellor Hardwicke, that if a man both of non-sane memory and out of the kingdom came into the kingdom and then went out again, his non-sane memory continuing, his privilege as to being out of the kingdom was gone, and his privilege as to non-sane memory would cease from the time he returned to his senses. (2 Atk. 610-614.) If a party at the time the cause of action accrues is abroad, the statute does not begin to run until he comes to England; and if he never comes, he has always a right of action while he lives abroad, and so have his executors or administrators after his death. (Strithorst v. Græme, 3 Wils. 145.) In this case the plaintiff was a foreigner, and the court held that, being a foreigner, he had six years for bringing his action after his first coming to this country. (See Lafond v. Ruddock, 13 C. B. 818.) If a plaintiff be beyond seas at the time of the action accruing, he may sue under the stat. 21 Jac. 1, c. 16, s. 7, at any time before his return, as well as within the time limited after his return. (Le Veux v. Berkeley, 5 Q. B. 836; Townsend v. Deacon, 13 Jur. 366; 3 Exch. R. 706.) If a plaintiff be in England when the cause of action accrues, the time of limitation begins to run, and a subsequent departure from the kingdom, and going beyond the seas, will not entitle the plaintiff or his representative to maintain an action after the expiration of the limited time. (Smith v. Hill, 1 Wils. 134. See Lord Kenyon's observations, 4 T. R. 311; Denys v. Shackburgh, 4 Y. & Coll. 47.) So where there are

several partners, some of whom are in England at the time the right 3&4 Will. 4, of action accrues and others beyond the seas, the action must be c. 27, s. 16. brought within six years next after the cause of action accrued, notwithstanding the absence of some of the partners beyond the seas. (Perry and others v. Jackson, 4 T. R. 516. See post.)

S.

of death.

Where a person has not been heard of for many years, the pre- Presumption sumption of the duration of life ceases at the end of seven years, a period which has been fixed from analogy to the statute of bigamy, (1 Jac. 1, c. 11, 2,) and the statute concerning leases determinable on lives. (19 Car. 2, c. 6.) Thus, upon a plea of coverture, where the husband had gone abroad twelve years before, the defendant was called upon to prove that he was alive within the last seven years. (Hopewell v. De Pinna, 2 Campb. 113.) Where a tenant for life had not been heard of for fourteen years by a person residing on the estate, it was held to be presumptive evidence of his death. (Doe v. Deakin, 4 B. & Ald. 433; see 2 Id. 386.) It was held, that where no account could be given of a person within the exception of the statute 21 Jac. 1, c. 16, s. 2, he would be presumed to be dead at the expiration of seven years from the last account of him. (Doe d. George v. Jesson, 6 East, 8.) Proof that a person sailed in a ship bound to the West Indies some years ago, which has not since been heard of, is evidence upon which a jury may presume that the individual is dead; but the time of the death, if it become material, must depend upon the particular circumstances of the case. (Watson v. King, 1 Stark. N. P. C 121; Paterson v. Black, Park's Ins. 483; 1 Bl. R. 404.) The burthen of proof is on those asserting the death. (Wilson v. Hodges, 2 East. 312.)

Though where a party has not been heard of for seven years, after going abroad, he will, at the expiration of that time, be presumed to be dead, there is no presumption raised by law as to the time when the death actually took place; but this is a matter concerning which the jury must form their own opinion upon the particular facts of the case. And therefore an ejectment brought by a remainderman more than twenty but less than twenty seven years since the tenant for life was last heard of, cannot be supported without other evidence, from which the jury may infer that the tenant for life was alive within twenty years. (Doe d. Knight v. Nepean, 2 Nev. & M. 219; 5 B. & Ad. 86.) In that case it was necessary to show that the ejectment was brought within twenty years of the death of a party, and for that purpose it was insisted, that although after a lapse of seven years after a party was last heard of the law presumes him to be dead, yet that the presumption is that he lives during the whole of that period; but the Court of Exchequer Chamber, on appeal from the Court of King's Bench, affirmed the doctrine there laid down, "that where a person goes abroad and is not heard of for seven years, the law presumes the fact that such person is dead, but not that he died at the beginning or end of any particular period during those seven years; that if it be important to any person to establish the precise time of such person's death, he must do so by evidence of some sort, to be laid before the jury for that purpose, beyond the mere lapse of seven years since such person was heard of. The presumption of law relates only to the fact of death: the time of death, whenever it is material, must be a subject of distinct proof." (Nepean v. Doe d. Knight, 2 Mees. & W. 894. See Doe d. Knight v. Nepean, 5 B. & Ad. 86; 2 Nev. & M. 219; Rex v. Inhabitants of Harbourne, 2 Ad. & El. 540; 4 Nev. & M. 341; Rex v. Twyning, 2 B. & Ald. 386.) 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 be heard of though alive. The old law relating to presumption of death is daily

K

3&4 Will.4, becoming more untenable, in consequence of the increased facility of c. 27, s. 16. travelling. (Watson v. England, 14 Sim. 28.)

of death.

A reference was made to the master, to inquire whether A. B. was Presumption living or dead. He reported certain facts and findings on stated evidence, showing 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 petition to confirm the report, the court read and considered the evidence, and came to a conclusion presuming the death. (Grissall v. Stelfax, 9 Jur. 890. See Wilcox v. Purchase, Ib.)

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.)

Where it is necessary to a plea of justification, under a lease from tenant for life, that he should be still living, the defendant must aver the continuance of the life, otherwise the plea is bad on general demurrer. (Dayrell v. Hoare, 4 Per. & Dav. 114.) A declaration for rent by assignee of a reversion for the life of a third person against assignee of the term. omitted to aver that cestui que vie was living when the rent accrued: it was held, that the continuance of the life was not to be implied from the mere deduction of title, and an acknowledgment in the breach that "after the plaintiff became so seised the rent became due and still is in arrear to the plaintiff," and that the declaration was bad on general demurrer. (Fryer v. Coombs, 4 Per. & Dav. 120; 11 Ad. & Ell. 403.) 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. In Sillick v. Booth, (1 Y. & Coll. N. C. 117,) a party was presumed to have died at a particular time within the seven years after he had been last heard of, the particular time being the hurricane months, and the party having sailed from Demerara before the expiration of such hurricane months. Where a testator died in 1829, leaving a will in favour of his children, one of whom went abroad in 1809, and had not been heard of since 1815; both before and after the testator's death endeavours were made, by inquiries and advertisements, to ascertain whether such child were living or dead, but without success: it was held, that he must be presumed to have died before the date of the will. (Rust v. Baker, 8 Sim. 443.) In establishing a title upon a pedigree, where it may be necessary to throw a branch of the family out of the case, it is sufficient to show that the person has not been heard of for many years, to put the opposite party upon proof that he still exists. What is done on such a trial is no injury to the man or his issue, if he should afterwards appear and claim the estate. (Rowe v. Hasland, 1 W. Bl. 404. See Fitz. N. B. 196, A. L.) Proof by one of a family, that many years before a younger brother of the person last seised had gone abroad, and that the repute of the family was that he had died there, and that the witness had never heard in the family of his having been married, is prima facie evidence of his death without issue to entitle the next claimant by descent to recover in ejectment. (Doe d. Banning v. Griffin, 15 East, 293.) The death of a legatee has been presumed from twenty-five years' absence abroad without being heard of. (Dixon v. Dixon, 3 Br. C. C. 510.) On a reference to the master to inquire whether a legatee was living or dead, the certificate of the master, stating that the legatee had been abroad twenty-eight years, and not been heard of for twenty-seven years, and his opinion that he died in the lifetime of the testator, was the