A person presumed to be dead, upon a proof of common fame and belief.
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In a reduction of a decreet of adjudication, led in the 1740, against David Yule, as lawfully charged in 1739 to enter heir to his father, among other reasons it was alleged, That David Yule had been dead ever since the year 1732; and therefore, that the charge to enter heir, and the adjudication thereon, must be null and void, as having proceeded against a person dead.
David Yule's death being denied by the defenders, a proof before answer was allowed, and taken in the year 1754.
Several witnesses concurred, that there was a current report that David Yule had gone aboard a ship at Philadelphia, bound for the West Indies, and that this ship had never after been heard of. One witness said, He was at Philadelphia when that ship sailed with David Yule on board; and before he left Philadelphia she was amissing, other ships having come from her destined port, after the time she ought to have arrived there, and brought no account of her: He further said, that he had been frequently at Philadelphia since that time, and heard the same report; and had also been informed there, that the wife of the master of the ship had married another husband.
This proof was advised ex parte. The pursuer's counsel alleged, That though it amounted to no more than common fame and belief, yet that was sufficient to presume David Yule dead, unless a contrary proof should be brought that he was alive: That the degree of common fame the Court had proceeded upon in like cases would appear from the following decisions; Spottiswood, voce Summons, 29th February 1628, Ruthven, voce Proof; 18th February 1670, Laurie, Ibidem; 25th July 1677, French, Ibidem; 2d January 1752, Burns contra Ogilvie, No 335. p. 11667.
“The Lords, on advising the proof, found the facts proved sufficient to presume, that David Yule was dead before he was charged to enter heir; and therefore sustained the objection, that he was dead before he was charged to enter heir; and reduced, decerned, and declared accordingly; and remitted to the Lord Ordinary to proceed on the other points in the cause.”
Act. Dav. Dalrymple.Clerk, Gibson.
Fol. Dic. v. 4. p. 133. Fac. Col. No 268. p. 503.
