titled to an enquiry as to the priority of his incumbrance. He was of opinion that he could not dispose of questions between co-defendants, but only of questions against the plaintiff. Against the plaintiff Mr. Rees had no right. His claim was in respect of a leasehold which he wished to revive, in order to establish a charge upon it. The plaintiff was entitled to a decree for foreclosure against him. His Lordship held the rule sacred that no question could be decided against codefendants, because they had no opportunity to meet it. He therefore felt some difficulty as to the decree he should make. He had made enquiries at the registrars' office, and been furnished with instances in which similar circumstances had occurred. One was given in

Edwards v. Martin, 28 Law J. Rep. (N.S.) Chanc. 49; s. c. 7 W. R. 30.

His Lordship read through the decree, and said that that was the sort of decree he proposed to follow. Another precedent was

Whitbread v. Roberts, 28 Law J.

Rep. (N.S.) Chanc. 431; which was before his Lordship in 1859, where his Lordship made a similar decree without prejudice to the rights and interests of the defendants between themselves.

There was also another question arising as part of the property was vested in the Crown, the mortgagor having been convicted of felony.

Hancock v. The Attorney-General, 10

Jur. N.S. 557; s. c. 33 Law J. Rep. (N.S.) Chanc. 661 ruled that the Court had no power to decree a foreclosure against the Crown. It might order a sale, but it had no power to order the Crown to convey. He would make a decree for foreclosure against the other defendants, giving them not successive but concurrent times for redemption. He should by that means avoid the great delay which usually arose in foreclosure suits.

AUGUST 4.-The case was again mentioned to his Lordship. A decree had been prepared, but the registrar desired his Lordship's attention to be called to certain points in it. This was accordingly

done, and his Lordship approved of the decree in the following form.

Order that an account be taken of what is due to the plaintiff, John Edward Bartlett, under or by virtue of his mortgage securities dated respectively the 27th of December, 1860, and the 20th of June, 1861, in the bill mentioned, and it appearing by the affidavit of George Hillier, filed the 1st of July, 1871, and the exhibit thereto, that Frederick Thomas · Galsworthy, as the surviving mortgagee of the late defendant, Frederick Chinnock, deceased, and himself, hath by the said indenture of the 20th of June, 1871, assigned and transferred the mortgage securities dated respectively the 5th of March, 1860, and the 9th of June, 1860, in the said bill, and in the answer of the said late defendant, Frederick Chinnock, deceased, and the defendant, Frederick Thomas Galsworthy, mentioned, and all principal and interest due, or to become due thereon to the plaintiff, it is ordered that an account be taken of what is due to the plaintiff as such assignee under or by virtue of the two last-mentioned mortgage securities, and for the plaintiff's costs of this cause to be taxed by the taxing master. And it is ordered that the plaintiff, John Edward Bartlett, do pay unto the defendants, James Cordery and George Thomas Woodroffe, their costs of this cause, as between solicitor and client, such costs to be taxed by the taxing master, and that what the plaintiff shall so pay for the said costs of the said defendants be added to his own, and included by the taxing master in the plaintiff's taxed costs, and it is ordered that the respective amounts due on all the plaintiff's said securities, and also the total amount due to him on all the securities, be certified. And it is ordered that upon the defendants, Edward Thomas Whitaker, William Hobart Rees, Francis Whitaker, Frederick Thomas Woolbert, Sarah Roupell the elder, Richard Roupell, and Sarah Roupell the younger, their, or either of their paying to the plaintiff, John Edward Bartlett, what shall be certified to be due to him under or by virtue of all his said securities, and for his costs aforesaid, within six calendar months after the date of the chief clerk's

ANA

certificate, at such time and place as shall be thereby appointed, the plaintiff do execute all proper and necessary deeds for conveying the hereditaments and premises comprised in his said respective mortgage securities, free and clear of and from all incumbrances done by the plaintiff, or any person or persons claiming by, from, or under him, and deliver up upon oath all the title-deeds and writings in his custody, or power relating to the said premises, to the said last named defendants, or to such one or more of them, as shall so redeem the plaintiff, or as he or they shall direct such conveyance or conveyances to be settled by the judge in case the parties differ about the same. And it is ordered that in case the said defendants, Edward Thomas Whitaker, William Hobart Rees, Francis Whitaker, Frederick Thomas Woolbert, Sarah Roupell the elder, Richard Roupell, and Sarah Roupell the younger, or any or either of them, shall so redeem the plaintiff, the defendants or defendant so redeeming the plaintiff, are or is to be at liberty to apply to this Court, as he, she, or they may be advised; and on such application it is not to be incumbent on the defendant or defendants so applying, to give to the plaintiff notice thereof, but this order is to be without prejudice to any question which may arise as to the rights or interests of the said defendants, as between themselves, to or in the said hereditaments and premises, but in default of the said defendants, Edward Thomas Whitaker, William Hobart Rees, Francis Whitaker, Frederick Thomas Woolbert, Sarah Roupell the elder, Richard Roupell, and Sarah Roupell the younger, or any or either of them so redeeming the plaintiff by the time aforesaid, it is ordered that the defendants, Edward Thomas Whitaker, William Hobart Rees, Francis Whitaker, Frederick Thomas Woolbert, Sarah Roupell the elder, Richard Roupell, and Sarah Roupell the younger, do stand absolutely barred and foreclosed of and from all right, title, interest, and equity of redemption in and to the hereditaments and premises comprised in the said mortgage securities and every part thereof; and this decree is to be also without prejudice to the rights of the Crown as regards the leaseNEW SERIES, 40.-CHANC.

hold premises comprised in the plaintiff's mortgage security of the 27th of December, 1860, in the seventh paragraph of the bill mentioned, and in case of such foreclosure as aforesaid it is ordered that the plaintiff be at liberty to hold the last-mentioned leasehold premises until the Crown shall think fit to redeem the same, and that the plaintiff be at liberty to apply in chambers for a sale of such leasehold premises. And this decree is to be also without prejudice to the paramount titles set up by the defendants, Richard Roupell and Sarah Roupell the elder, by their answers filed in this cause, as regards the premises affected or alleged to be affected thereby. And it is ordered that all further proceedings in this cause as against the defendants, John Tredwell and William Henry Hewett, who have respectively assigned or released their claims as such judgment creditors as in the bill mentioned, and as against the defendant, Frederick Thomas Galsworthy, who has, as aforesaid, assigned his mortgage securities to the plaintiff, be stayed. And any of the parties are to be at liberty to apply as they may be advised.

that the question between the testator's estate and his sister could not be tried in this way, but required the institution of a distinct suit.

Alexander Walker gave by his will an annuity of 2001. a year to his sister Margaret Grainger Walker, and made Sybil Walker and Michael Walker, who were both infants, two of his residuary legatees. Shortly after his death a suit for administration of his estate was instituted in the Court of Chancery in England, by Sybil Walker and Michael Walker, against his executors, and on the 11th of February, 1871, the usual decree was made. On the 10th of March an order was made for service of notice of this decree on Margaret Grainger Walker, who resided near Dumfries in Scotland, and also on other parties; and on the 16th of May, on the application of Margaret Grainger Walker, an order was made giving her leave to attend the proceedings under the decree. The plaintiffs then took out a summons for production of documents by Miss Margaret Grainger Walker, with which, though residing out of the jurisdiction, she complied.

The plaintiff's now filed affidavits stating that the testator purchased 4,0001. stock of the Bank of Scotland in the name of his sister, Margaret Grainger Walker; that she held it as trustee for him, and that it formed part of his estate; that she threatened and intended to sell it and apply the proceeds to her own purposes; and they moved for an injunction to restrain her from doing so. They alleged that the testator was a domiciled Englishman.

There were no affidavits filed on behalf of the respondent.

Mr. Anderson and Mr. Jones-Bateman, for the motion, cited

Innes v. Mitchell, 1 De Gex & J. 423;

s. c. 26 Law J. Rep. (N.S.) Chanc. 719; 4 Drew. 141;

and referred to the 15 & 16 Vict. c. 86. s. 42, rule 8, enacting that parties served with notice of a decree shall be bound by the proceedings in the same manner as if they had been originally made parties to the suit.

Mr. Southgate and Mr. Ramadge, for

Miss Margaret Grainger Walker, were not called upon.

THE MASTER OF THE ROLLS said that the question between Miss Margaret Grainger Walker and the testator's estate could not be tried on motion in this. manner, as the case would have to be sought out amidst a mass of affidavits. A bill should be filed expressly averring the grounds of relief, so that the whole might appear on the pleadings. The motion would therefore be refused; and if the respondent undertook not to part with the fund in question until the last seal-day before the long vacation, he would give her the costs of the motion.

[Mr. Southgate said the respondent was willing to give such an undertaking.]

The Master of the Rolls then said he would give her her costs. The plaintiff's would be at liberty to take such proceed ings as they might be advised.

Solicitors Mr. F. W. Hilbery, for plaintiffs; Messrs. Norris & Sons, for respondent.

LORDS JUSTICES. 1871. March 23. Presumption of Death-Onus Probandi. The death of a legatee is presumed after he has not been heard of for seven years, and there is no presumption of law that he lived beyond the first day of the seven years; but the onus of proving that he survived a given day, lies on those who claim under him.

In re LEWES' TRUSTS.

And the fact that the person who takes in case of lapse, whether as next of kin or as residuary legatee, is the one to commence proceedings to obtain payment of the money to himself, does not shift the onus of proof.

John Lewes, by his will, and by a codicil thereto, gave two legacies of 4,000l. and 2501. respectively, to his son Thomas Lewes; and he gave the residue of his estate to Colonel J. Lewes.

John Lewes died on the 20th of February, 1860,

Thomas Lewes sailed from England for Australia in 1858, as officer on board a merchant ship. He arrived at Port Phillip at the end of the same year, and on the 3rd of January, 1859, he wrote a letter from Sydney to a relation then resident in Queensland: since that time nothing had been heard of him, although every possible enquiry had been made, and everything done to discover whether he was alive or dead.

In February, 1861, the legacies of 4,000l. and 2501., bequeathed to Thomas Lewes, were paid into Court; and in 1870 the residuary legatee presented a petition for payment of them to him, on the ground that Thomas Lewes must now be taken to be dead, and as it could not be presumed that he had survived the testator, the legacies had lapsed and fallen into the residue. The Vice Chancellor Malins made the order accordingly on the 9th of December, 1870, considering himself bound by the decision

In re Phene's Trusts, 39 Law J. Rep. (N.S.) Chanc. 316; s. c. Law Rep. 5 Chanc. 139.

From this order the persons who would have been next of kin of Thomas Lewes, if he had died unmarried, appealed.

Mr. Hardy and Mr. Bevir for the appellant. The residuary legatee has come here to claim that which prima facie belongs to another person. He must therefore prove his case; he must shew that Thomas Lewes did not survive the testator; for though, no doubt, the presumption of law is that he is now dead, there is no presumption, according to

Doe v. Nepean, 2 Mee. & W. 894, that he died immediately after he was last heard of, or at any precise period in the seven years. Moreover, this is a contest between two legatees, not between a legatee and the next of kin if it were between the latter, perhaps the Court would consider that the onus probandi lay on the legatee. That seems to be the gist of the decisions; but when the contest is between two legatees, the Court will not show any favour to one, but will require the claimant, who is in this case the residuary legatee, to prove his right strictly.

Mr. Glasse and Mr. Bagshawe, for the respondent, were not called upon.

JAMES, L.J.-This is the case of Doe v. Nepean and Phene's Trusts over again. The law is, that death is presumed after a person has not been heard of for seven years, but that there is no presumption that death occurred at any particular time in the seven years; and whoever has to make out that a person died at a particular time in the seven years, must do so by affirmative evidence; and those who claim under a person on the ground that he survived a particular day in the seven years, must prove the fact that he did survive that day. Here the onus is on those who claim under the pecuniary legatee, and they have entirely failed. It can make no difference whether the persons who take in case of lapse are the residuary legatees or the next of kin. The appeal must be dismissed.

MELLISH, L.J.-As I read Doe v. Nepean, it established that presumption of life continues for seven years, and that after seven years there is a presumption of death, and no presumption that life continued beyond the first day of the seven years. The person whose claim rests on another being alive on any day during the seven years, must prove his title by affirmative evidence. The onus is on him, and it cannot make any difference whether he presents the petition, or whether, as here, the residuary legatee presents it. This case is clearly governed by In re Phene's Trusts, which put on a right footing the decision in Doe v. Nepean. The appeal must be dismissed, with costs. Solicitors-Messrs. Peacock & Goddard, agents for Messrs. Price & Son, Burford, for appellant; Messrs. G. L. P. Eyre & Co., for respondent.