that the world was not as bright as it was now that women had come into their right, yet it was better than ever before, largely because women could boast that they were no longer the children of the bondwoman but of the free.

Surely this is a most provocative opinion to come from the Recorder of London, whose knowledge of the city and its group mind must at least be as "extensive and peculiar " as Mr. Weller's; and if London is to be regarded as the chef-lieu of modern civilization, then assuredly the world" do move." A hundred years ago an English dramatist, speaking of her own sex, said: "A woman is only one of Nature's agreeable blunders." We know, too, that the mid-Victorian laureate declared that " Woman is the lesser man "-accompanying the statement with some unflattering remarks about a "shallower brain." Now, however, we are to unlearn all this and recognize that the Super-Woman arrived while we were foolishly straining our eyes to see the Super-Man. In the new reign of law about to descend upon us the goddess of justice will not be blind, and it is equally certain that she will not be dumb. She may wear bobbed hair, and strange incense will be burned in her temple where of old men durst not smoke. Cherchez la femme has taken on a new meaning for lawyers.

The ever-increasing tendency of those armed with the authority of the law to narrow the boundaries of personal liberty was demonstrated in a picturesque way in the city of Pittsburgh recently. It appears that Miss Mabel Anderson, a telephone operator, aged nineteen, was arrested as a "suspicious person" and confined in the North Side police station by Patrolman J. J. Blackstone because she refused to keep a "date" with that vigilant guardian of the good behaviour of the community. She was discharged upon enquiry before the Judge of the Morals Court, and Blackstone was ordered to justify himself before the police trial board. We are unaware of the result of the board's investigation, but wonder if the resourceful officer was able to brief anything to his advantage from the Commentaries of his illustrious English namesake.

NOTES.

PRESUMPTION OF DEATH.-Just what the Supreme Court of British Columbia meant to do in the recent case of In re Ball' is not wholly clear. (See also In re Carlson2 to the same effect.) The Court made an order that a husband who was proven to have been absent and unheard of for seven years "be and he is hereby presumed to be dead," and that his wife (who was the petitioner) "is at liberty upon said presumption to marry again if she so desires." Does this really mean what grammatically it says, that the husband "be...... dead"? If the phrase that the wife "is at liberty upon said presumption to marry again" is read as modifying the first clause, no doubt the reasonable interpretation of the order is that the Court meant merely to say that on the evidence before it a prima facie case as to the husband's death had been made out, and that it neither presumed to encroach on the domain of Providence and order that the absent spouse ipso verbo "be dead" nor even purposed the more modest object of issuing a decree of civil death based on seven years' absence unheard of.

Nevertheless the form of the order made that the petitioner "is at liberty upon said presumption to marry again if she so desires" is grossly inaccurate and misleading, inasmuch as it suggests that as a result of the order such new marriage will be valid and the children of such a union legitimate. The exact effect of such an order is worth noting, even though, as is likely, its wording may have been inaccurately reported.

It is not the purpose of this note to give the history of the common law presumption of death arising from seven years' absence unheard of by those likely to hear from the absent person. Professor Thayer has shown how it developed from the judicial adaptation as a general rule of law of the provisions of the Bigamy Act, 1 Jac. I., c. 11, and the Act respecting estates dependent on lives, 19 Car. II., c. 6.—(Preliminary Treatise on Evidence, 319-324. The Bigamy Act made bigamy a felony, but it exempted from the scope of its provisions, and so from the guilt and punishment of a felon, two classes of persons: (1) those who had married a second time when the first spouse had been beyond the seas for seven years-it said nothing about knowledge of the absent spouse's existence, and consequently it was

construed as making such knowledge immaterial, 1 Hale P. C. 693; and (2) those whose spouse had been absent for seven years, although not beyond the seas, "the one of them not knowing the other to be living within that time." The other statute, 19 Car. II., c. 6, “for redress of inconveniences by want of proof of the deceases of persons beyond the seas or absenting themselves, upon whose lives estates do depend" provided that the person thus absenting himself should "be accounted as naturally dead" if there should be no "sufficient and evident proof of the life," and that the judge should "direct the jury to give their verdict as if the person... were dead." The Bigamy Act was replaced by sec. 57 of the Offences against the Person Act, 1861, and sec. 307 of the Criminal Code is substantially the same as the latter enactment. It is clear beyond cavil that the provisoes and exceptions made in the English statutes as to bigamy are meant merely as defences in prosecutions for bigamy, that they do not regard the absent party as dead absolutely for all purposes, and that they do not validate the second marriage. (See 4 Blackstone, Comm. 164n. Russell on Crimes, 8th ed. 973, Eversley on Domestic Relations, 3rd. ed. 80.) Such must also obviously be the interpretation of sec. 307 of the Criminal Code. And by the statute 19 Car. II., c. 6 if the absent party should not really have died, provision was made for a subsequent recovery by him. There is no authority or reason for holding or supposing that the common law presumption of death from seven years' absence which developed from the equitable application of the principle of these statutes to other cases should receive any other interpretation. On the contrary, the view here advanced has been acted on in such cases, and where administration was granted in a probate court on the presumption of death, it has been held void if the supposed person turn up alive, though he has been absent and not heard of for seven years. (Hegler v. Faulkner, Scott v. McNeal, Devlin v. Comm.) And in some cases in England the court has required parties entitled to the legacies in the event of the death of the legatees to give security to refund, in case the legatee should return. (Norris v. Norris, Bailey v. Hammond, Dowley v. Winfield, Cuthbert v. Purrier.")

It is clear therefore in law that the only effect of this presumption of death, as of any other presumption, is to shift the burden

153 U.S. 109, 118.

154 U.S. 34.

101 Penn. St. 273.

Finch, R., 419.

17 Ves, 590.

14 Sim. 277.

2 Phil. Ch. C. 199.

of coming forward with evidence from the proponent to the opponent, and that the opponent will lose unless he rebuts the presumption, and it should be made clear to the party concerned that an order such as the one obtained in the instant case is neither a judicial homicide of the absent spouse, nor a dissolution or annulment of the first marriage, that if such party contract a second marriage he or she runs an excellent chance of having it declared invalid and the children thereof illegitimate, if the absent party should return. The only practical use of such an order is, in fact, to perpetuate testimony and make it available on a possible later prosecution for bigamy. J. T. H.

CRUELTY IN MATRIMONIAL CAUSES.-The legal view of cruelty as a ground for affording relief in matrimonial causes has received a noteworthy extension in the Manitoba case of Newton v. Newton.1 In that case proceedings taken by a husband to have his wife placed in a psychopathic ward of a hospital and the removal of their child so that the wife could not see it and was kept in ignorance of its whereabouts, were held in the wife's suit for judicial separation to constitute legal cruelty, even within the interpretation of that term adopted in Russell v. Russell. Had this been the only result of the case there would have been nothing more to be said about it, but Galt, J., took the opportunity of reviewing the authorities and coming to a conclusion different from that reached by Mathers, C.J., of the same court three years ago, and also of giving a new interpretation of the term "cruelty."

A discussion of this subject usually begins with a reference to the classic judgment of Lord Stowell in Evans v. Evans, in which he laid down the law in these terms:

"What merely wounds the mental feeling is in few cases to be admitted where not accompanied with bodily injury either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language or want of civil attention or accommodation, even occasional sallies of passion if they do not threaten bodily harm do not amount to legal cruelty; they are high moral offences in the marriage state undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law can relieve." He goes on to say that the circumstances must be such as to create "an absolute impossibility that the duties of married life can be discharged."

1 (1924) 1 W. W. R. 999.

2 (1897) A. C. 395.

(1790) 1 Hagg. C. C. 35.

4

This decision was followed by Westmeath v. Weston, in which Sir John Nicholl stated that "there must be ill-treatment and personal injury or the reasonable apprehension of personal injury."

In 1857 The Divorce and Matrimonial Causes Act was passed. It provided by section 27 that divorce might be granted to a woman for, among other reasons, "adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et thoro, or .. adultery coupled with desertion, without reasonable excuse, for two years or upwards." The divorce a mensa et thora was abolished and replaced by judicial separation, and by section 16 "a sentence of judicial separation . . . may be obtained, either by the husband or the wife on the ground of adultery, or cruelty, or desertion without cause for two years and upwards." By section 22 the divorce court is to give relief on principles and rules conformable, as nearly as may be, to the principles and rules upon which the ecclesiastical courts had been accustomed to proceed.

As might have been expected, the courts continued to follow the view of the legal cruelty which had been accepted since 1790, and Tomkins v. Tomkins expressly recognized Evans v. Evans as still the ruling authority. In 1897 the famous case of Russell v. Russell® came before the House of Lords. The plaintiff, Earl Russell, founded his claim upon the cruelty practised by the countess in spreading abroad in the social circles in which they moved unfounded charges of unnatural crime, but their Lordships rejected his suit, re-affirming the rule by which the courts had been guided for upwards of a century, there being no evidence that the plaintiff's health had been affected by the slanders complained of.

7

Before Russell v. Russell it had been usual to charge personal violence as a necessary fact in asking the assistance of the court, but in that case it was recognized that if the health of the petitioner were injuriously affected by the conduct of the respondent, that circumstance would be sufficient without the presence of physical violence, actual or threatened. Subsequently in Jeapes v. Jeapes, a wife was granted a decree of divorce because of unfounded charges of adultery made against her by her husband, which had the effect of injuring her health. Baker v. Baker, and referred to in Dorsett v. Dorsett, was another case in which the cruelty charged was of a moral kind, namely a practice of writing letters to the petitioner threatening to

Reported in the London Times of December 11, 1919.