Isabel Hogg, Relict of Alexander Home, v. George Home of Whitefield
Date: 19 June 1706 Case No. No 551.
Where no positive evidence can be got of a person's death, resort must be had to presumptions.
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Isabel Hogg, relict of Alexander Home chirurgeon, pursues George Home of Whitefield, his brother, as intromitter with his means and patrimony, to make forthcoming to her, the terce and third of it due to her by law, and offered to prove, by his oath, that he had his bond of provision given him by his father, in his custody and keeping, and craved he might exhibit the same, and pay what was due to her jure relictæ. Alleged for Whitefield defender, She had no right title nor interest to pursue this action; 1mo, He denied the marriage; and, 2do, Esto that were proved, he denied that he was dead; and in law præsumitur vivere nisi contrarium probetur; and she offering to prove both; and the marriage having been consummated at London, and he dying in the East Indies, a commission was granted her to London, to prove both points; and, first, she produced affidavits taken before the Lord Mayor of London, but they not being by virtue of any warrant from the Lords, they were not regarded as probative. So the commission being executed by Sir David Nairn, secretary-depute, and the testimonies being this day advised, the Lords found, on the disposition of Mr Cranston the minister, and other witnesses, that their marriage was sufficiently proved; but the difficulty arose on the probation of death, which amounted to this, that the clerk and book-keeper of the East-India Company at London, deponed, That one Alexander Home was hired to go in their ship to their factories at Bengal in 1687, and that they had heard no more of him afterwards, but only find his name recorded in their books; and that Isabel Hogg, as his widow, applied to the managers of said Company, and got money from them as a part of his wages, and that the wardens and constables of Duke's Place in London, hearing of his design of going that voyage, arrested him, till he found caution that his wife and children left behind him, should not be a burden on the parish, and that he was commonly holden and reputed to be dead. Answered, The witnesses acknowledge that they did not know him, and so it might be another man, seeing their might be several Alexander Homes, and her application as relict was but her own assertion. The Lords thought, where one is alleged to have died on the other side of the equinoctial line, and after 19 years absence, there could no full probation be got, and therefore found it sufficient to this effect, to make Whitefield depone, what was his brother's portion, and if it be in his hands, or if he intermeddled therewith? and assigned a day for him to compear and exhibit, if he had writs that belonged to his brother, for clearing what his patrimony was, and if he had any bond of provision settled on him by his father. For where persons die in places so remote, there cannot be got a demonstrative probation, but probatio semiplena et conjecturalis, upon holden and reputed; and such like presumptions must be taken, otherwise it can never be proved.
Fol. Dic. v. 2. p. 264. Fountainhall, v. 2. p. 335.
