8 Com. P. 401. And the same principle was subsequently affirmed in a case of very similar facts: Gwinnell v. Eamer, L. R. 10 Com. P. 658; see also Leonard v. Storer, 115 Mass. 86, 15 Am. Rep. 76, where the lessee covenanted to "make all needful and proper repairs, both internal and external." The language of the court, when taken in connection with the facts, is explainable in consonance with the early English cases before cited. See also the dictum in the recent case in Massachusetts, already cited, of Dalay v. Savage, supra.

But this principle has been ably reviewed in the strong opinion of Folger, J., in Swords v. Edgar, supra. This opinion declines to accept the doctrine of the above cases, for the reason that they "ignored the rule announced in Rosewell v. Prior, and followed and established in many cases." Folger, J., speaking for the whole court upon this question, said: "The person injuriously affected by the ruinous state of the premises demised has no right nor privity in the covenant. He is not given thereby a right of action against the lessee greater nor more sure than he had before. He has the right, without the covenant. The covenant is a means by which the lessor may reimburse himself for any damages in which he is cast by reason of his liability. But it is an act and obligation between himself and another, which does not remove nor suspend that liability. It is not so, that a person on whom there rests a duty to others may, by an agreement between himself and a third person, relieve himself from the fulfillment of his duty. Surely an ineffectual attempt to fulfill would not; as if in this case insufficient repair of the pier had been made by a builder who had contracted with the lessor to do all that was needful to make the pier secure for all comers. A covenant taken from a lessor to keep in order and repair is no more effectual than a contract with a builder to the same end. Both may

afford an indemnity to the lessor, but neither can shield him from responsibility." The New Jersey case of Rankin v. Ingwerson, supra, sustains the same view. And we adopt the doctrine of the case from which we have so largely quoted as sound on legal principles and public policy.

And even if a lessee's covenant would, when broad enough in its terms, operate a relief of the lessor's liability, the covenant here would not affect the case in hand, for it is restricted and limited to "maintaining, preserving, and keeping the station-houses in as good order and repair as the same now

AM. ST. REP., VOL. VL-11

are, so that there shall be no depreciation in the general condition thereof at any time during the term."

The testimony as to the proximity of the awnings at the other stations had a legitimate bearing on the question of the exercise of care on the part of the plaintiff; and the defendant pursued the same line of inquiry, not only on cross-examination, but in the direct examination of its own witnesses, Stowell and Winters. We think, also, that Sawyer's testimony was legitimate.

Motion and exceptions overruled.

QUESTION OF CONTRIBUTORY NEGLIGENCE IS FOR JURY, where facts are disputed or where different inferences may be drawn from undisputed facts: See Alabama etc. R. R. Co. v. Arnold, 84 Ala. 159; 5 Am. St. Rep. 354.

LIABILITY FOR INJURIES ON LEASED LINES OF RAILWAY: See the note to Singleton v. Southwestern R. R. Co., 48 Am. Rep. 580–582; McMillan v. Michigan etc. R. R., 16 Mich. 79; 93 Am. Dec. 208, and note 227. As to liability of railroad for torts of lessee, see note to Ohio etc. R. R. Co. v. Dunbar, 71 Id. 295-298.

JOHNSON V. MERITHEW.

[80 MAINE, 111.]

WITNESS. IN WRIT OF ENTRY, PLAINTIFF IS COMPETENT WITNESS who demands title in his own right as an heir at law, where he is not made a party as "heir of a deceased party": R. S. Me., c. 82, sec. 98. PRESUMPTION OF DEATH FROM ABSENCE. A person who leaves his home for temporary purposes, and is not heard from for the space of seven years by those who would naturally have heard from him, is presumed to be dead; but the death of such person, at any particular time during that period, is never presumed, but must be proved. DEATH MAY BE PROVED IN CASE OF A PERSON UNHEARD OF FOR A LONG PERIOD OF TIME by showing facts from which a reasonable inference would lead to that conclusion; and the time of the death may be fixed with more or less certainty in the same manner.

PRESUMPTION AS TO SURVIVORSHIP.- Where several lives are lost in the

same disaster, there is no presumption from age or sex that either survived the other; but the fact of survivorship must be proved by the party asserting it.

WRIT OF ENTRY.-Specific or undivided part of the premises, although less than that demanded, may be recovered under the Revised Statutes of Maine, chapter 104, section 10.

W. P. Thompson and R. Dunton, for the plaintiffs.

William H. Folger, for the defendant.

HASKELL, J. Writ of entry. Plea, nul disseisin.

Both

parties claim title under Margaret P. Nickerson. The tenant

claims that Margaret conveyed the premises to her son, Aaron W. Nickerson, in 1875; but demandants say that such deed is void for fraud, and inoperative for want of her capacity to make the grant, and for want of delivery.

Upon this issue, the tenant objects to the competency of Mrs. Heath, one of the demandants, because she claims to have inherited a share of the property as heir to her mother, Margaret P. Nickerson.

This objection is not well taken, for Mrs. Heath demands in her own right that which she inherited from her mother, and is not made a party as "heir of a deceased party": R. S., c. 82, sec. 98; Higgins v. Butler, 78 Me. 520.

It appears that in January, 1875, while on a visit to her daughter, Mrs. Heath, in Boston, Mrs. Margaret P. Nickerson was stricken with paralysis, or some kindred malady, that prostrated her bodily, and confused and unsettled her mind; that in the following March, being somewhat restored, she was taken to her home in Belfast, where she and her husband resided with their son, Aaron W. Nickerson, until her death in the following October; that ever after her illness in January she at times could not recognize her children and friends, and persisted in calling one of her daughters Aaron.

An office copy of the deed of the demanded premises from Margaret P. to her son, Aaron W., dated and recorded April 15, 1875, is set up as evidence of a conveyance of the property to him. The original is not produced, nor is any reason given for withholding it; nor is the subscribing witness, who took the acknowledgment of the deed as a magistrate, called to testify.

A mortgage of the same property is also in evidence, dated the same day, and recorded December 21, 1875, after the death of Margaret P. in the preceding October, from Aaron W. to her husband, Aaron, conditioned to secure the payment of twelve hundred dollars in installments, the last falling due in four years, and a discharge of the same is shown by the record August 26, 1876; but no other evidence is adduced upon that subject.

From a careful consideration of all the evidence, without reviewing it in detail, the court is of opinion that the supposed deed from Margaret P. Nickerson to her son, Aaron W., did not operate as a conveyance of the property to him. It has become a recognized rule in this court that, in actions at law, when the parties submit questions of fact to the determination

of the law court, they must be content with a decision of them without a review of the testimony in the opinion and reasons stated in detail.

Margaret P. Nickerson died in October, 1875, seised of the demanded premises, leaving three children, the demandants and Aaron W., to whom the same descended in undivided shares of one third each, so that the demandants became seised of two undivided thirds thereof.

The other one third descended to Aaron W., who, accompanied by his wife and three children, all under ten years of age, sailed February 3, 1880, from Troon, Scotland, in command of a vessel loaded with coal for Havana, none of whom have since been heard from.

His father, Aaron, died September 6, 1886, having quitclaimed all his interest in the demanded premises to the tenant September 11, 1880; so that if Aaron W. died before that date leaving no children surviving him, his one-third share in the same descended to his father, and passed under the latter's deed to the tenant; but if Aaron W. survived that date, then nothing passed by the father's quitclaim deed to the tenant: Pike v. Galvin, 29 Me. 183; Crocker v. Pierce, 31 Id. 177; Coc v. Persons Unknown, 43 Id. 432; Walker v. Lincoln, 45 Id. 67; Harriman v. Gray, 49 Id. 537; Read v. Fogg, 60 Id. 479; Powers v. Patten, 71 Id. 583; and the demandants inherited from him two thirds of his one third in the demanded premises, making their interest in the same eight ninths in all.

A person who leaves his home for temporary purposes, and is not heard from for the space of seven years by those who would naturally have heard from him, is presumed to be dead: Wentworth v. Wentworth, 71 Me. 72; Stevens v. McNamara, 36 Id. 176; Loring v. Steineman, 1 Met. 204; but the death of such person at any particular time during that period is never presumed, but must be proved: Newman v. Jenkins, 10 Pick. 515.

Death may be proved by showing facts from which a reasonable inference would lead to that conclusion, as by proving that a person sailed in a particular vessel for a particular voyage, and that neither vessel nor any person on board had been heard of for a length of time sufficient for information to be received from that part of the globe where the vessel might be driven, or the persons on board of her might be carried: White v. Mann, 26 Me. 361.

If death may be inferred from facts shown, it logically fol lows that the time of the death may be fixed with more or less certainty in the same manner: Watson v. King, 1 Stark. 121.

In the case at bar, the vessel, commanded by Aaron W. Nickerson, heavily laden with coal, sailed from Troon, in the south of Scotland, for Havana, a voyage usually accomplished in from twenty-five to forty days, in the track of many sailing vessels and steamers plying between the north of Europe and America.

In case of shipwreck, it is improbable, if not impossible, that the Benj. Haseltine, if driven ashore, should not have been reported in the United States within six months of her loss. If any on board of her had been rescued by passing vessels, they would have, within that time, sent the intelligence of shipwreck to the home port of the vessel. The circumstances surrounding the vessel and the voyage that she entered upon may well authorize the inference of her loss with all on board within the six months following the date of her departure from Scotland, and a jury would be authorized to find the death of her master and his family prior to September 11, 1880.

The weight of authority, at the present day, seems to have established the doctrine that where several lives are lost in the same disaster, there is no presumption, from age or sex, that either survived the other; nor it is presumed that all died at the same moment; but the fact of survivorship, like every other fact, must be proved by the party asserting it: Underwood v. Wing, 4 De Gex, M. & G. 633, affirmed on appeal in Wing v. Angrave, 8 H. L. Cas. 183; Newell v. Nichols, 75 N. Y. 78; 31 Am. Rep. 424; Coye v. Leach, 8 Met. 371; 41 Am. Dec. 518, and note of cases 522.

In the absence of evidence from which the contrary may be inferred, all may be considered to have perished at the same moment; not because that fact is presumed, but because, from failure to prove the contrary by those asserting it, property rights must necessarily be settled on that theory.

In the case at bar, the father was a man forty years of age, and his minor children under ten. The last known of either was upon their sailing from Scotland. No evidence whatever gives any light upon the particular perils they encountered at death. The children are not proved to have survived their father, and therefore he died without issue, and his one third