Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRESUMPTION.
Subject_3 Presumption in favour of Life.

Michael Lade
v.
Robert and Walter Scott

Date: 3 December 1778 Date: 28 January 1779

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Hailes. This is an exceeding frivolous dispute. Lady Cranston might put an end to it by writing twice a-year, I am alive, J. Cranston; but since she will not indulge the defender in this, I do not see how she can be compelled, as long as she has a known domicile in England: were she to go out of the British dominions, I would require some evidence of her being alive. I do not think that the presumption of life to an hundred years is sufficient.

Braxfield. The husband is in petitorio, and he must prove the fact that Lady Cranston is alive.

Covington. When Lady Cranston leaves London, she must intimate that she is going to some other place, that so the persons concerned may not lose sight of her.

Gardenston. Why may not Lady Cranston certify that she is alive, when by marriage she assigns her right to her husband? Ought he not still to give the same evidence of her being alive which she would have done before, by signing discharges?

Kaimes. I do not see that the purchasers, the defenders, have any interest in this matter: as long as Lady Cranston resides in London, there is no use for a certificate.

Alva. Lady Cranston's jointure is secured at Crailing: in strictness of speech she ought to come there to receive it: if that is not convenient, she ought to give evidence that she is alive, that the person whom she has authorised may receive it.

Justice-Clerk. Mr Lade is entitled to draw the annuity, without the necessity of any discharge by Lady Cranston. If it is so certain that evidence must be brought of the annuitant's being alive, it is strange that the demand now made has never been made before: the law presumes that a liferenter, fairly entered to the possession of her annuity, by herself or her assignee, is alive until the contrary is proved. I see no reason for distinguishing this case from that of any other annuitant. The habitation of Lady Cranston is known, and the parties have access to know whether she is alive or not; if any special matter was mentioned that there was a doubt of her being alive, the case might be different. I hope that this Court will not consider a residence in London as a thing as little known as a residence in France or Italy. The case of annuities payable to annuitants by Government will not apply; 1 st, Because the mode of ascertaining life is required by Act of Parliament; 2d, Because Government cannot inquire into the case of every individual annuitant.

On the 3d December 1778, “The Lords found that Lady Cranston must either concur in granting discharges, or that evidence of her being alive must be produced by certificate from a Justice of the Peace;” altering the interlocutor of Lord Auchinleck.

Act. H. Dundas. Alt. A. Elphinston.

Diss. Kennet, Covington, Hailes, Justice-Clerk.

Justice-Clerk. Mr Lade is in possessorio, and not in petitorio. If Messrs Scotts will say that Lady Cranston is dead, and that her death is concealed, the Court will order an exhibition of the lady.

Monboddo. By our interlocutor, in attempting to make the law better, we have made it worse. A factor is entitled to levy rents: if the tenant has any doubt of the constituent being alive, he may suspend. What is to be done when a wife is froward, and will not concur in signing the receipt? And what if the Justice of the Peace on whom the interlocutor relies, should not know Lady Cranston to be the widow of the late Lord?

Gardenston. There can be no good reason for refusing to comply with the terms of the interlocutor: the very refusal justifies suspicion.

Kaimes. What moves me, is the possibility of playing tricks. Lady Cranston may be locked up for twenty years, and yet the Messrs Scotts cannot swear that there is reason to believe that she is dead.

President. It is not required that they should swear. It is admitted, that whenever there is any reason for suspicion that Lady Cranston is dead, the Messrs Scotts may withhold payment. The statutes requiring oaths as to life, show that this is a legislative power, and not a power at common law.

Braxfield. If the mode laid down in the interlocutor is blamed, I shall agree to any other mode. Messrs Scott are not bound to pay without some sort of evidence that Mr Lade has right to demand payment. Mr Lade's right depends on his wife's being alive: he must satisfy the debtor that he is the husband of the wife at the time of his granting the discharge: as often as an annuity falls due, he comes to be in petitorio. The creditors have an interest to be heard here: if Lady Cranston is really dead, it will be no apology for Messrs Scott that they paid bona fide.

On the 28th January 1779, “The Lords found that Mr Lade was not obliged to produce Lady Cranston to a Justice of the Peace, without prejudice to Messrs Scotts' withholding payment, on showing reasonable cause of belief that Lady Cranston is dead;” altering their interlocutor of ——.

Act. D. Rae. Alt. H. Dundas, H. Erskine.

Diss. Kaimes, Gardenston, Stonefield, Ankerville, Braxfield.