1833. CARR against ROBERTS. schedule, and all actions, suits, claims, or demands on account of them. As far as the words of this clause go, if there were nothing more, it might be a doubt whether the plaintiff was entitled to recover more than the 201. and the costs incurred by the plaintiff; but the former part of the instrument clearly shews that there is an agreement, in effect, that the defendant shall take this debt, among others, upon himself. That is, therefore, the defendant's covenant. Then an action is brought against the plaintiff for arrears of the annuity to the amount of 500l., and judgment is given against her. That arises from the defendant not discharging the arrears, as it was his duty to do; and he is bound to put her in a situation to pay that which, by his default, she has become liable to pay. To a certain extent, namely, 201. and her costs, she has been actually damnified. The defendant suffers no prejudice in being called upon to pay the whole amount: it is his duty to pay it; and it makes no difference as to that, whether she applies it in discharge of the debt or not. PARKE J. The Court, in effect, decided this point when they ordered a new trial on payment of costs; it would else have been nugatory to grant such a rule. There are, in fact, two covenants in this deed; -to pay the debts, and to indemnify the testator and his representatives. I doubt if, upon the second alone, this action was not maintainable, for by that the defendant was bound to protect and save harmless the covenantees. But, at all events, there is a breach of the first covenant, and it is well assigned; and as covenants which relate to the personal estate go (with some few exceptions) to the personal representatives, it is clear that the administratrix in this case was entitled to sue for, and recover, the whole sum demanded. The intestate might, if a judgment for the arrears had been recovered against him; so, therefore, may the administratrix. This case is, in principle, like Lethbridge v. Mytton (a). PATTESON J. The express covenant in this case is not only to indemnify, but to protect; and a sufficient breach of that engagement is alleged, when the plaintiff states that the defendant did not protect the covenantees, and by reason thereof an action was brought, and judgment recovered, against the administratrix, to the extent of all the assets she had. I do not mean, however, that I entertain any doubt as to there being also a breach of a covenant by the defendant to pay the debt. As to the amount of damages, I think the plaintiff is entitled to the whole sum claimed. The argument to the contrary is only this, that if she recovered it, she might not make a proper use of it. Rule discharged. (a) 2)B. & Ad. 772. See Huntley v. Sanderson, 1 Cro. & M. 467. 1833. CARR against ROBERTS. 1833. DOE dem. KNIGHT against NEPEAN, Bart. A person who EJECTMENT for copyhold premises. At the trial has not been heard of for 55 545 seven years, is 74 presumed to be dead, but there is no legal presumption as to the time of his death. The fact of his having been alive or dead at any particular pe before Taunton J., at the Dorsetshire Summer assizes, 1832, it appeared that the lessor of the plaintiff claimed the premises by title accruing on the death of Matthew Knight. Matthew went to America in 1807, and was never heard of after that year. The lessor of the plaintiff was then of age. The ejectment was brought in 1832, and the question at the trial was, whether or not this action was barred by statute of must be proved limitations, 21 Jac. 1. c. 16. s. 1. (a) It was admitted riod during the by the party relying on it. that Matthew must be presumed to have died, more than seven years having elapsed since he was heard of. If that presumption were considered as referable to the time when the last intelligence was received of him, the ejectment was brought too late; but if it arose only when seven years had elapsed from the receipt of such intelligence, the action was in time. The learned Judge was of the latter opinion, and directed a verdict for the plaintiff, giving leave to move to enter a nonsuit. Easter term last, In Coleridge Serjt. and Erle shewed cause (b). It is admitted that the lessor of the plaintiff must prove his title to have originated within twenty years. In this (a) Which enacts," that no person or persons shall at any time hereafter make any entry into any lands, &c. but within twenty years next after his or their right or title which shall hereafter first descend or accrue to the same." (b) Before Denman C. J., Littledale J., Parke J. case case the party on whose death the title accrued, was shewn to have been alive in 1807, and must therefore be presumed to have lived till within twenty years of the bringing of this ejectment; that is, till 1814. One of those conclusions which the law invariably draws from certain premises, and which are called legal presumptions, is the continuance of life in a person once known to be living, till the contrary appear: 2 Stark. on Ev. 261., 2d ed. (a), citing Wilson v. Hodges (b), where Lord Ellenborough refers to Throgmorton v. Walton (c) for the same point. The presumption as to this fact has no definite limit except that which has been laid down by analogy to the express provisions of certain acts of parliament (namely, the statute against bigamy, 1 Jac. 1. c. 11. s. 2. (d), and the statute 19 Car. 2. c. 6. (e),) and which makes the presumption cease after seven years. But for the analogy (a) And see p. 681. note n. Ibid. (d) Which provides, that nothing in that act "shall extend to any person or persons whose husband or wife shall be continually remaining beyond the seas by the space of seven years together, or whose husband or wife shall absent him or herself the one from the other, by the space of seven years together, in any parts within his Majesty's dominions, the one of them not knowing the other to be living within that time." (e) Entitled, "An Act for Redress of Inconveniencies by Want of Proof of the Deceases of Persons beyond the Seas or absenting themselves, upon whose Lives Estates do depend." Sec. 2. enacts," that if such persons for whose lives such estates have been or shall be granted as (in the preamble is) aforesaid, shall remain beyond the seas, or elsewhere absent themselves in this realm, by the space of seven years together, and no sufficient and evident proof be made of the lives of such person or persons respectively, in any action commenced for recovery of such tenements by the lessors or reversioners; in every such case the person or persons upon whose life or lives such estate depended, shall be accounted as naturally dead; and in every action brought for the recovery of the said tenements by the lessors or reversioners, their heirs or assigns, the judges before whom such action shall be brought, shall direct the jury to give their verdict as if the person so remaining beyond the seas, or otherwise absenting himself, were dead.” G 4 drawn 1833. Doɛ dem. 1833. DoE dem. drawn from these acts of parliament, the present ejectment could not be supported at all; or at least it would be for the jury to say whether or not Matthew Knight was dead. Referring, then, to these statutes, the effect of the rule to be deduced from them clearly is, that the presumption of life is to be cut down to seven years, but continues till the last moment of that period; and the death cannot (in default of evidence) be carried back to an earlier date. Otherwise it must be contended that the party who was supposed to be living at every point of time till the seven years were complete, must, after that period elapsed, be presumed to have been dead ever since the seven years commenced. In the case of bigamy, indeed, a different reckoning prevails; for if the husband or wife has not been heard of for seven years, a second marriage during that period is presumed to have taken place after the party's death; but that is a supposition in favour of innocence; to conclude otherwise would be presuming a crime, which the law will not do (a). In Doe dem. George v. Jesson (b), Lord Ellenborough said (speaking of a party who had gone abroad and never since been heard of): "As to the period when the brother might be supposed to have died, according to the statute" (referring to 19 Car. 2. c. 6., and to 1 Jac. 1. c. 11.) " the presumption of the duration of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from the time when they were last known to be living. Therefore, in the absence of all other evidence to shew that he was living at a later period, there was fair ground for the jury to presume that he was dead at (a) See Rex v. Twyning, 2 B. & 4. 385. (b) 6 East, 85. the |