SECOND READING. (Hansard, 4 March 1881)

§ MR. ANDERSON
, in moving that the Bill be now read a second time, said, he would explain in a very few words what its object was. The Bill proposed to remove a defect by introducing into the law and practice of Scotland a presumption similar to that in force in England, that when a person had been absent and unheard of for a certain time he had ceased to exist. In Scotland, if an absentee disappeared, and no one knew anything about him, there was no limitation to the presumption of his being alive. In England, he understood, they had a more sensible rule of law. The law was, that if a man was absent from England, and was entirely unheard of for seven years, the presumption became one of death. There was no such law in Scotland; and, in consequence, a man being absent might be presumed to be alive for an indefinite period. Unless 100 years had elapsed from his birth, the Courts would still consider that he was alive. That was a very bad state of the Scotch law, and 367 though the Court of Session had power to consider cases of that sort, it was known the Court required evidence of probable death, and had no rule of law to guide them in cases of mere absence; and therefore people would not go to the Court at all. Consequently, there were hard cases where, after long absence of a person, the successors could not get possession of the property because they could not afford to go to the Court on so doubtful an issue, and provide the caution money that the Court, in cases of success, required. The grievance of the present state of the law was, therefore, one that should not be measured by the cases that came before the Courts, but by the cases that existed, and did not come to Court. His proposition was, that when a man was absent and was entirely unheard of for seven years the law should presume he was dead, in so far as giving to his successors the income and use of any property he might have left, or become entitled to since he left. At the end of another six years, making 13 years' absence in all, and still being entirely unheard of, he proposed that the successors should be enabled to get any movable property left; but if there was any heritable property he gave a further six years, making 19 in all, before that could be obtained, thus following the lines of English law as regards limitation of actions to six years for personal and 12 years for real estate. Those absorbed the chief propositions of the Bill. There was also a proposition relating to absent heirs of entail; but that was only an adjunct to the Bill, though a useful one. However, he did not wish to take up much time at present. As he had said, those were the main provisions of the Bill; and he thought they would commend themselves to Members of the House, especially to English Members, who had already so much more sensible a law. He would, having made that explanation, move the second reading of the Bill.

§ THE LORD ADVOCATE (Mr. J. M'LAREN)
confessed he did not altogether agree with his hon. Friend (Mr. Anderson) with regard to his proposed mode of dealing with the subject. At 368 the same time, he would admit that the practice of the Courts of Scotland in dealing with the property of persons who had been absent from the country for some considerable time was not satisfactory, therefore he felt it would be ungracious on the part of a Member like himself, who had not sat long in the House, to oppose the second reading of a Bill introduced, under the circumstances attending the one under notice, by an hon. Member of so much greater experience than himself; and he thought probably, without any departure from the principle, such alterations might be made in Committee as might effect an improvement in the existing state of the law, and assimilate it in some respect to the practice in England. It appeared to him that the period of seven years was much too short a time to fix upon as creating a presumption that a person who had been absent for that time had ceased to exist. The rule of the law in England, which he believed was not an absolute rule, but merely a presumption capable of being overcome by other evidence, related to a very remote period of their history, when travelling was not so general as now, and when there were not so large a number of the population emigrating to Colonial and foreign countries, and there making their homes. Because a person had gone to a Colony and remained unheard of for seven years, that was not sufficient reason to presume he was dead. In assigning the limit, it was not sufficient, without regard to the circumstances attending his previous history, without regard to his age and strength, and the fact that it was not unusual for persons in the Colonies to break off communication for a long period from their friends, to determine that the man was dead, and that his estate should be divided amongst his next of kin; nor did he think that was a sufficient reason why next of kin should have the right to use the property. It would be a serious thing to distribute property, or hand over its usufruct, when the owner had been away for only seven years; but the presumption might arise after a disappearance of 20 years. He quite admitted, however, that the law in Scotland, in treating the case as a question of fact to be decided on its own merits, had often worked unsatisfactorily, and the receivers appointed by the Courts 369 had frequently kept in their hands the estates of persons who had gone abroad for a longer time than was necessary for protecting the interests of such persons. He should not oppose his views to those of the hon. Member in this matter, and would therefore support the second reading, in the hope that, either by a Committee of the Whole House or by a Select Committee, the Bill would be turned into a more perfect shape.

§ SIR JOHN HAY
thought the suggestion of the right hon. and learned Lord Advocate that the Bill should be referred to a Select Committee was a very sound one, and that such a course would be most advantageous. The hon. Member for Glasgow had introduced the Bill for the purpose of assimilating the law to that of England; and if it was referred to a Select Committee, the differences in the law might be properly considered, and, if possible, the law of the two countries assimilated. As that was the object of the hon. Member, and as the right hon. and learned Lord Advocate agreed with it, he (Sir John Hay) heartily supported the proposition that the Bill be referred to a Select Committee.

MR. OSBORNE MORGAN
said, he thought the proposed course of referring the Bill to a Select Committee would be the best to take. There was no Statute Law on the subject in England, except the statute relating to bigamy; but it was true that in other cases the Courts, following the analogy of that statute, presumed when a person had not been heard of for seven years he was dead, but that, like every other presumption, it was liable to be rebutted by evidence. The law of England, as far as he knew, had worked exceedingly well, and he never heard any complaint on the subject; and it was, in his opinion, desirable that the law of Scotland should be assimilated, as far as possible, to the law of this country.

§ DR. WEBSTER
remarked that from experience it was found that no tribunal worked better than that of a Select Committee. Therefore, he entirely agreed with the proposal, and he believed the Profession in Scotland would all agree with it. He did not think, however, that the law in Scotland was so bad as the Mover of the Bill had stated.

§ DR. COMMINS
opposed the second reading, believing that instead of assimilating the Scotch law to that of England, 370 it would be an advantage if the English law followed that of Scotland. The Bill introduced a principle which was not followed by the law of England. The presumption after the lapse of seven years only existed in the case of a prosecution for bigamy. Administration of the effects of an absent person could only be obtained on satisfactory proof being given to the Court that such a person was presumably dead. There was no rule of law on the subject with regard to personal property. With regard to real property also there was no rule whatever. He thought that if the Bill were allowed to pass, some more scientific principle than existed already might probably be introduced into English law.

§ SIR EDWARD COLEBROOKE
assumed, from what the hon. and learned Lord Advocate had told the House, that there was a want of principle or a want of rule in the decisions of the Courts, and that therefore it was matter for consideration. If that were the case, the best course would be to refer it to a Select Committee. If it were desirable to assimilate the law of England and Scotland, he should suggest that the right hon. and learned Gentleman himself should bring forward a Motion to that effect. Under the circumstances, he concurred in the proposal to refer it to a Select Committee.

§ MR. DAWSON
inquired whether seven years' absence in England was really a presumption of death in all cases, or whether this presumption was only applicable in cases of bigamy?

MR. HINDE PALMER
said, that seven years' absence of husband or wife would exempt a person marrying again from the penalties attaching to second marriage; but, so far as related to the general law of England, the period of seven years had only been adopted by analogy to the law relating to bigamy. It was by no means a hard-and-fast line that seven years was a presumption of death. The Courts were simply in the habit of taking that period as a foundation of proceeding, and were always careful to ascertain whether or not the presumption could be fairly applied in each individual case. If the rule applied in every instance, without the relaxation applied by the Courts, it would probably be found that the law required amendment; and he was very 371 much inclined to think that, by some such Bill as that under consideration, they might make the law of England more specific and safe; and, under those circumstances, he was very glad that the right hon. and learned Lord Advocate did not object to the principles of the Bill, and wanted to make it as perfect as he could. He should therefore very gladly support the second reading of the Bill, concurring in the suggestion that it should go to a Select Committee. It proposed a very material amendment of the law, which might, to some extent, be adopted in England.