Possession, how presumed, and what presumed from it.
Subject_3 SECT. II.
Possession of Moveables presumes Property.
Sir John Scot and Walter Scot v. Sir John Fletcher
Date: 27 January 1665 Case No. No 284.
In a process for restitution of a book, the pursuer was obliged to condescend quomodo desiit possidere.
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Walter Scot, as being assignee by Sir John Scot of Scotstarvet to an Atlas Major, of the late edition, pursues Sir John Fletcher for delivering thereof, as belonging to the pursuer, and now in his hand. The defender answered, Non relevat, unless it were condescended quo titulo; for if it came in the defender's hands by emption or gift, it is his own; and in molibibus possessio præsumit titulum; seeing, in these, writ nor witnesses use not to be interposed; and none can seek recovery of such, unless he condescend quo modo dessiit possedere; else all commerce would be destroyed; and whoever could prove that once any thing was his, might recover it per mille manus, unless they instruct their title to it. 2do, Though it should be condescended that they were lent, yet it must be proved only scrito vel juramento, being a matter above an hundred pounds. The pursuer answered, That in liquid sums or promises, witnesses are not receivable above that sum; but, in corporibus or facts, as in bargains of victual, made and delivered, witnesses are sufficient, though for greater value.
The Lords found, The pursuer behoved to condescend upon the way the books were delivered; and found it probable by witnesses.
Fol. Dic. v. 2. p. 161. Stair, v. 1. p. 258.*** Newbyth reports this case:
1665. January 28.—Walter Scot having right by assignation from his father, Sir John Scot of Scotstarvet, to six volumes of Atlas Major, which the said Sir John caused reprint, and made some voyages to Holland for that effect; after the date of which assignation, the said Sir John did lend to Sir John Fletcher, at his earnest desire, the said six volumes; and now pursues him for redelivery thereof; the time of calling of which action, the question was touching what was necessary to be proved in the said summons; for it was alleged by Walter Scot the pursuer, That it was sufficient for him to say and prove, that the books were his, and that they were in Sir John Fletcher's possession; or else, quod dolo desiit possidere, and rei vindicatione to pursue for restitution of his own goods, without any necessity for him to prove that they were lent to Sir John Fletcher, any other way than by his own declaration: To which it was answered, That where the party that delivers the goods is pursuing for redelivery, in that case, it is not sufficient for him to say, that the goods are in the defender's possession, and that he had once a right to them; but he must prove the delivery, and ex qua causa they were delivered; which can only be probable scripto vel juramento. The Lords repelled the defence, and found the summons probable pro ut de jure, in regard the subject of controversy was books et sic inter mobilia.
