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In an action pursued by Sir James Erskine contra Steven, for removing from the lands of Tillibody, the defender alleged, That he should not remove, because he bruiked by tolerance of John Steven, who had a tack of the lands libelled, during all the days of his lifetime, set to him by the pursuer's author, and which John Steven, tacksman, is not warned. To which it was answered by the pursuer, That it was not necessary to warn the alleged tacksman, except the defender would allege that he were on life, seeing the tack being set only for his lifetime, he ought to allege and prove that he was living the time of the warning; and so much the rather he ought to allege the same, seeing it is so long since the tack was set, viz. in anno 1559; and the tacksman is out of the country, and hath been so these many years, and since hath never returned. It was duplied, That he had no necessity to prove that he was in life the time of the warning, because he being once in life, præsumitur de vita nisi probetur mors. The Lords found no necessity to the defender to prove that the tacksman was in life, seeing the presumption of the law proved the same, (he being once living); and therefore found the exception relevant without that astriction, except the pursuer would allege that he were dead at the time of the warning positive.
Act. Hope & Rollo.Alt. Paip.Clerk, Gibson.
Durie, p. 26.*** Haddington reports this case:
In the action betwixt Sir James Erskine and a tenant of Tillibody, the Lords found an exception relevant proponed by the defender, That he was tenant to a man not warned, who had a liferent tack of the lands libelled, and was not burdened to prove that he was in life, but thought it was presumed, unless the pursuer would offer to prove that he was dead. Thereafter, the pursuer Replying, That he offered to prove that the defender's master embarked in a ship called the Haukehead, to make a voyage towards Norway, at Hallowe'en 1620, that the ship nor any in her ever returned, nor were heard of, and so behoved to be reputed dead, and to have perished in the said ship, with all the rest; which was found relevant.
