Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat this week in the Outer-House, and so the observe are fewer.
William Clopton and George Watson v. Duncan M'Intosh
Date: 6 June 1701
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William Clopton, merchant in London, and George Watson, his factor, pursue Duncan M'Intosh, merchant in Edinburgh, for £76 sterling, contained in his accepted bill of exchange in 1695.
Alleged,—No process at your instance, as factor; because Clopton, your constituent, is either turned bankrupt, conform to the statute in England, or, 2do. is dead since the process; and so your factory falls as extinct: and either of thir being sustained as relevant, the defender, for proving the pursuer's death, adduces sundry missive letters from persons of credit and integrity at London; bearing, that, his affairs running into confusion, he went for Persia or the East Indies, and the report from the Turkey merchants came, that he died on his way thither at Scanderoon in Cilicia, a province of Asia Minor. And also he adduces witnesses, who depone on the common report and fame of his being holden and reputed dead, and that his wife and children were in mourning for him; and also produced an attestation from the secretary of the East India Company anent it, and an extract of the administration of his testament out of the Prerogative Court of Canterbury to one Gabriel Glover.
Answered,—The presumption of law was, that semel vivus adhuc vivere prœsumilur, especially where he was an old man; and though this may be taken off by a contrary presumption of his death, yet the conjectures here adduced were very slender, and were only de auditu, and upon hearsay. And where merchants turn insolvent, it has been given out that they were dead, and their widows put on mourning, and so forced the creditors to compone and give down their debts, And for convelling this probation, and putting the affair out of doubt, they produced a letter from him in November 1697, a year after they give out he was dead.
The Lords having balanced all thir contrary evidences, and considering the allegeance was not to take away the debt, but. only to annul the factory and his power of uplifting the money, they found the documents adduced, though not a full probation of his death, yet sufficient to the effect of stopping the factor.
Then the factor offering to confirm the sum before extract, the Lords thought this inconsistent with the title he pursued on in his summons as factor, and therefore refused to receive it hoe ordine; therefore, ordained the defender to find sufficient caution to make the sum forthcoming to any who should afterwards make up a sufficient title. Some proposed the consigning of the money; but that was thought prejudicial to the creditor, seeing it would stop the cursus usurarum in the mean time; and so caution was appointed, and the factory not sustained; for there was nothing to instruct that the letter in 1697 was Clopton's hand-writ, and there were other suspicions against it.
