Circumstances adduced to counteract the presumpof life. See No 344. p. 11679.
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Charles Hay assigned to Alexander Blair, for a valuable consideration, a bond of annuity granted to Hay by his father, of which Blair, by legal diligence against the granter's representatives, obtained some few years payment. Hay in the meantime went abroad, and for several years was never heard of. Blair, in 1752, brought a process against the Representatives of Hay's father, for payment of arrears of the annuity since Martinmas 1735, and in time coming. To this it was objected, That Hay the cedent was long since dead; which fact being ordained to be proved by the defender, the evidence rested on the following adminicles; 1mo, A copy of an indenture, in 1739. between Hay and Macintosh a merchant in Edinburgh, in which Hay binds himself to serve him as an apprentice in Jamaica for four years; 2do, a certificate by one of the bailies in Edinburgh, whereby Hay is said to have certified before him, that he was thirty-four years of age at subscribing the said indenture, which he did voluntarily; 3tio, The copy of an affidavit emitted by Cornelius Obrien, overseer of a plantation in Jamaica, certifying, that in 1739 one Charles Hay arrived at his plantation, and died some time between 28th December 1742 and 28th March 1743, to the best of his memory; 4to, The attestation of a notary in Jamaica, certifying, that the above were true copies of the original indenture and of Obrien's affidavit; 5tο, A letter, bearing date, Kingston, July 1741, (which however appeared to be altered by erasure from “1739”) from Charles Hay himself to Blair the pursuer, desiring him to direct for him at the plantation above mentioned. It was questioned, how far the presumption arising from these adminicles was not so strong as to defeat the legal presumption of life, and sufficient to throw on the pursuer the onus probandi, that Charles Hay was still alive. Several objections were made for the pursuer, viz. That neither the indenture itself, nor Obrien's affidavit being produced, a certified copy of both, which is nowise authenticated, and depends solely on the credit of the person employed by the defender's agents to attest it, can never be held as probative in this country; That by the copy of the indenture, it appears, that neither the writer's name nor designation have been inserted, which is by our law a statutory nullity. And it was further urged for the pursuer, That as he was to be considered as in possessorio, having drawn some years payment of this annuity, a presumption of this kind, which might have had force to have barred his claim, had he only been in petitorio, must, in the present case, be held as quite insufficient to cut down the legal presumption of life. The Lords, in respect that the pursuer refused to undertake any proof of Charles Hay's being in life, found, that the presumption of his having died before the 28th March 1743, was more pregnant than the legal presumption for life; and remitted to the Ordinary to proceed accordingly. See Appendix.
