Scottish Court of Session Decisions

This was a petition by a party for authority to uplift certain funds which had been destined to his

Page: 155↓

only brother, and were payable to him on his reaching the age of twenty-five years. The brother, if now alive, is aged twenty-seven, but it was stated that in 1853, when he was fifteen years old, he went abroad as an apprentice seaman; that when the ship was at Callao, in South America, in 1854, he was left in the hospital there on account of ill-health, and after getting convalescent he left to seek employment, but that he had not since been heard of, although every inquiry had been made. It was also stated that he had received a good education and was perfectly able to communicate with his friends by letter, but that since he left this country no communication had been received from him, although he was well aware that there was considerable heritable and moveable property in this country in which he had an interest. The petitioner offered to find caution to repay to his brother in the event of its being found afterwards that he was still alive. Answers were lodged by Mr William Wood, C. A., who was in 1862 appointed factor loco absentis for the brother, on the application of the present petitioner. He referred the Court to the following cases in which applications similar to the present had been granted—viz., Fettes, 7th July 1825; Hyslop, 15th June 1830; Campbell's Trustees, 1st February 1834, Garland, 12th November 1841; and Fairholme, March 1858; and to the following cases in which they had been refused—viz., Campbell 17th June 1824; Fife, 16th June 1855; and Barstow, 14th March 1862. The petitioner founded upon the case of Ruthven (M. 11,629, and Dickson on Evidence, p. 228).

The Court refused the petition. They knew of no case in which a person who had been only absent for twelve years, and would be now, if alive, only twenty-seven years of age, had been presumed to be dead, and to have left no issue.