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Sarah French, as executrix confirmed to John Wemyss her husband pursues the Earl of Wemyss for payment of 1000 merks due to her umquhile husband, who alleged no process till it were notour and known, that her husband was dead, he having lately gone abroad as a soldier to France. It was answered, That the confirmation was a standing decreet, bearing the husband to be dead, and the defender would be secured by the Lords' sentence, likeas ex abundante the pursuer will find caution to warrant him; and if executors be put to prove that defuncts are dead, it will be a common pretence for delay. It was replied, That when the death is notour, as it is of persons having died within the country, an edict served at the parish kirk where they dwell, is a sufficient probation, if the contrary be not proved; but this holds not in those who die out of the country, and therefore edicts and confirmations passing of course, do not instruct their death, likeas in this case John Wemyss went abroad but within these six or seven years.
The Lords found the defence relevant, unless the pursuer offered to prove, that her husband having gone abroad as a soldier, hath not been heard of these several years, and is commonly reputed by the neighbourhood as dead; because in a flagrant war, where the death of soldiers cannot be particularly known, their not appearing for several years presumes their death, unless the contrary be proved.
