One being pursued to restore a watch, his defence was, that, in the pursuer's presence, he gave it to a third person, the pursuer making no opposition. Answered, the parties being in Parliament at the time, the pursuer's silence cannot import consent. The defence was repelled.
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The Lord Couper alleging, That being sitting in Parliament, and taking out his watch to see what hour it was, he gave it to my Lord Pitsligo in his hand, and that he refuses to restore it; therefore craves to be restored, and that he may have the value of it, pretio affectionis, by his own oath. The defender alleged, absolvitor, because the libel is not relevant, not condescending quo modo the defender is obliged to restore; for if the pursuer insist upon his real right of the watch, as proprietor, the libel is not relevant; because he subsumes not that the defender is possessor, or haver of the watch, at the time of the citation, or since, or at least dolo desiit possidere; or if the pursuer insist upon a personal obligation, he ought to subsume, that the defender borrowed the watch, or took the custody thereof, and thereby is personally obliged to keep and restore. Secondly, Albeit the libel were relevant, absolvitor, because the defender offers him to prove, that the pursuer having put his watch in his hand, as he conceives, to see what hour it was, the defender, according to the ordinary civility, they being both sitting in Parliament, the Lord Sinclair putting forth his hand for a sight of the watch, the defender did, in the pursuer's presence, put it in his hand, without the pursuer's opposition or contradiction, which must necessarily import his consent, and liberate the defender. The pursuer answered, That he did now condescend that he lent his watch to the defender, and that there was betwixt them contractus commodati; because the defender having put forth his hand, signifying his desire to call for the watch, the pursuer put the same in his hand, and though there were no words, yet this contract may be celebrated by intervention of any sign of the party's meaning, which here could be no other than that which is ordinary, to lend the defender the watch to see what hours it was, which importeth the defender's obligement to restore the same. To the second defence, Non relevat; because the defender's giving of the watch to the Lord Sinclair was so subit an act, that the pursuer could not prohibit, specially they being sitting in Parliament in the time; and therefore, in that case, his silence cannot import a consent.
The Lords sustained the libel, and repelled the defence, but would not suffer the price of the watch to be proven by the pursuer's oath, but prout de jure, See Oath In Litem.
