Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M.P. - Cahill v. Spence and Others [1866] ScotLR 2_9_1 (17 May 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0009_1.html
Cite as: [1866] SLR 2_9_1, [1866] ScotLR 2_9_1
[New search] [Contents list] [Printable PDF version] [Help]
SCOTTISH_SLR_Court_of_Session
Page: 9↓
Court of Session Inner House Second Division.
v.
Facts:
Circumstances in which held (aff. Lord Kinloch) that there was no evidence to prove that a person was dead.
This case was raised for the distribution of the estate of the late Captain John Cahill, who died at the Cape of Good Hope in 1853, survived by a brother, Lieutenant David Cahill, who died in 1854. Mrs Mary Wilson or Cahill, the widow of David, was appointed administratrix of the estate of John by the Prerogative Court of Canterbury; and the main question raised in this process was whether a third brother, named Patrick Cahill, was alive, and if dead, when he died.
If he predeceased either John or David the whole of John's estate went to David's widow. If he survived David, the one-half of John's estate would fall to him, or to his next of kin.
It appeared from the proof which was led that Patrick sailed from London in 1852 for Australia, on board the ship Mermaid, that he wrote from off the Cape, but that nothing had been heard of him since.
After the proof had been taken, Mrs Spence appeared as a claimant, alleging that she had been married to Patrick in 1843, that he soon after deserted her, that she had obtained decree of adherence in February 1852, and also aliment at the rate of £30 a-year from 1843. She then obtained a decree of divorce, and now claimed £270 of arrears of aliment decerned for and £203 of interest.
The Lord Ordinary (Kinloch) held that there were no circumstances established sufficient to prove or raise a presumption that Patrick Cahill was dead; and preferred Mrs Spence as his creditor.
The other claimants having reclaimed, the Court, unanimously adhered, on the ground that, it being impossible to say that Patrick Cahill was dead, neither of the other claimants were entitled to appear.
Counsel for Claimant Mrs Wilson— Mr Horn and Mr Guthrie Smith. Agent— Mr Andrew Scott, W. S.
Counsel for Mary Ann Cahill— Mr Pattison. Agent— Mr Somerville, S. S. C.
Counsel for Mrs Spence— Mr Napier and Mr Lamond. Agent— Mr Steele, S. S. C.