Found, that jewels, and, other such valuable moveables, being disposed of by a trustee, the' they pass through mille nanus, the haver of them is liable in restitution to the proprietor.
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Colonel Cunningham gives in custody to the deceased Mr James Aikenhead, certain curious jewels of a considerable value, conform to an inventory under Mr James his hand: Thereafter the Colonel goes for Germany, and being there, draws some bills upon Mr James, who answers them accordingly. The Colonel dies, and the jewels remain in Mr James his hands all this time: Mr James assigns the bills to John Ramsay, his brother-in-law, who gets the keeping of the jewels also; and a bond is granted by him and Mr Robert Bytes, for the Colonel's use, to make them furthcoming. After the incoming of the English, John Ramsay having hid the jewels in a coal-cellar in his house at Edinburgh, the said Mr Robert deals with the damsel of the house, and gets the jewels, and carries them north with him: And after the English were settled, he returns and keeps still the jewels, till after several years, Mr Robert being become very necessitous, he did impignorate diverse of the jewels to James Wilson, and others; and, before he redeemed them, he died. The said John Ramsay, by his assignation granted to him by Mr James Aikenhead, his brother-in-law, to the Colonel's bills; confirms himself executor-creditor to the Colonel, and pursues the havers of the jewels, to make them furthcoming to him. It was alleged by James Wilson, That he should be assoilzied; because, the jewels having been in the possession of the said Mr Robert Byres for many years, it was lawful for the defender to fake them as pledges for money lent to him, his peaceable and unquestionable possession of such moveables giving him such a right as might make any man bona fide to buy or block for them, just as for household stuff, or any other furniture, which are not in use to be sold in public markets. And in the law there is usucapio in mobilibus, which, after so long a time, establishes a right in the possessor's person. It was answered, That the jewels being ab initio entrusted in the hands of Mr James Aikenhead for custody, and the truster having thereafter died out of the country, and Mr Robert Byres his intromission therewith being vitious, as having viis et modis gotten them out of John Ramsay's possession, and which, by a missive letter under his hand, he obliges himself to make furthcoming; which instructs that Mr Robert was never owner of them, and no power to dispose upon them, by pledging them, or otherways; but having done it, it is proper rei vindicatione for the Colonel's executors to pursue for them, even after so long a time, there being no prescription run by the law of this country. And though the jewels had gone per mille manus, the haver always is liable, who should know better the condition of the party he deals with. And the reason why the said John Ramsay did not insist against the said Mr Robert Byres was, because he feared the English should have seized upon them, if he had pursued for them. Likeas, the defender cannot pretend a bona fides, in taking them as pledges as Mr Robert Byres his goods; because, they were so curious, and of such a quality, as it could not be presumed that Mr Robert could be owner of such jewels, he not being a jeweller, nor ever a trader with jewels; whereas, the defender might have had some reason for him, if the jewels had been such as men of Mr Robert's quality are usually masters of. The Lords sustained the summons, and repelled the allegeance.
Fol. Dic. v. 1. p. 592. Gilmour, No 175. p. 126.*** Stair reports this case.
1665. December 12.—Golonei Cunningham having impignorated a number of jewels of great value, immediately thereafter, went out of the country, and never returned. These jewels were in the custody of John Ramsay, who and Mr Robert Byres had given bond to make them furthcoming to the Colonel; and now John Ramsay having been confirmed executor to the Colonel, pursues James Wilson, and others, for exhibition and delivery of the jewels. The defenders alleged, Absolvitor; because the jewels were impignorated by Mr Robert Byres for a considerable sum of money, who having them in his possession, it was a sufficient ground for the defenders to contract with him, because property of moveables is presumed by possession; and, therefore, it is not relevant to libel, that once the jewels were Colonel Cunningham's, and, therefore, they must be restored to his executors, unless it were also libelled quomodo desiit possidere; so that the jewels behoved to have passed from him, without his own consent, or alienation, otherwise it is always presumed, that he sold or gifted them, and needs not be proved; else no man could be secure of any moveable; if he who could instruct that he bought it, could recover it from all possessors, unless they could instruct all the ways the same passed from the first owner. The pursuer replied, That the case is not here as to moveables, that are ordinarily sold in market, but in relation to jewels of great value, which cannot be presumed to have been Mr Robert Byres's, because they were never worn by him, as being his proper goods, nor were they competent to any of his quality; and, therefore, the defenders were in mala fide to acquire them from him, without knowing his right.
2dly, It is instructed by Mr Robert Byres's letter produced, that he acknowledged them to be Colonel's, before the impignoration; and it is offered to be proved, that he broke up John Ramsay's cellar, and took them out; 3dly, The Colonel impignorated them by writ, and so the presumption of alienating them ceased, because, he went immediately out of the country, and never returned. It was answered, That there is no difference of jewels more than any other moveables, which use to pass without writ from jewellers that sell them; and the pursuer having possessed them these 10 or 12 years, without question, has right thereto, by usucapion.
The Lords found the allegeances jointly relevant to elide the presumption, and that there is no usucapion in moveables in Scotland, by possession, in less than 40 years, but only a presumptive title, which is altogether elided by the answers.—See Presumption.
Stair, v. 1. p. 326.*** This case is also reported by Newbyth.
1665. December 12.—The deceased Colonel Cunningham having, in anno 1636, left some jewels with Mr James Aikenhead, gave him an inventory thereof under his own hand, with an acknowledgment of the receipt, and an obligement to restore; and thereafter the Colonel did draw precepts upon Mr James for sums of money, which precepts, and receipts of money therein contained, the said Mr James did assign to John Ramsay, for payment of sums of money due to him; for satisfaction whereof, the said John having raised a summons for exhibition and delivery of the said jewels so confirmed, the said Mr James, to prevent the issue of the said action, did deliver the said jewels to the said John, in whose possession they did thereafter continue, till the year 1650, the jewels having been buried in the said John Ramsay his coal-cellar. Mr Robert Byres did most unwarrantably take out of the said cellar the whole jewels, by connivance and tolerance of John, his servant; as he acknowledged himself; by a letter under his hand, wherein he likewise promised to restore the same. Many of the jewels being now discovered, after the death of Mr Robert Byres, to be in the hands of James Wilson, and others, the defenders, who got the same from Mr Robert Byres; there is action intented at John's instance, as having right, as said is, for exhibition and delivery thereof. And some of them being exhibited, and the defenders oaths taken upon having of the rest, reserving their defences against the delivery, it is alleged for the defenders, That they cannot be decerned to deliver the jewels, because they bona fide got the same for security of their money lent to Mr Robert Byres, in whose possession they then were; and the said jewels being mobilia et paraphernalia, they were not bound to enquire what right Mr Robert had to them. For, as to moveable goods, it is enough for any man to say, that they acquired the same lawfully, albeit it be a non dommo; and they having possessed the, same by the space of 10 or 12 years, without interruption, the right thereto is now prescribed by the civil law, which, in usucapionibus mobilium, requires only annalem et triennalem possessionem; and, by our law and practique, it hath been found by the Lords, that horse and kye, bought in public markets, being possessed by the buyers for the space of one year, cannot thereafter be quarrelled by the true owners; and, therefore, the pursuer never having intented action against Mr Robert Byres, or any of the defenders, as having right from him, cannot now crave the same rei vindicatione. To which it was replied by the pursuer, That he oppones his summons, having a good and valid title to the said jewels, being executor-creditor confirmed to the said umquhile Colonel Cunningham, as is clear by a subscribed inventory, registered in the Sessionbooks; and the defenders cannot instruct that ever Mr Robert Byres had right thereto, or that they themselves have right by assignation or disposition from him: The most they can allege being only that the said Mr Robert was debtor to James Wilson by personal bonds; 2do, Mr Robert Byres's possession being vitious, et clam et furto, as he has confessed under his own hand, contestatur rei alience, being vitium reale, it so affects the thing itself, that non potest usucapi etiamsi per mille manus transient; 3tio, Albeit by the civil law, usuca-piuntur mobilia per vicennalem possessionem; yet it is not so by the laws of this kingdom; and any decisions that have been given have only been as to horse, kye, and sheep, qua usu consumuntur; whereas, the question here is concerning jewels of a great value, and being in the hands of so mean a person as Mr Robert Byres, are suspected to be ill come; 4to, The pursuer's silence cannot be obtruded to him, in regard of the troubles of the time, wherein he durst not discover the same, lest the usurers had seized on them.—The Lords repelled the defence, in respect of the summons and reply; and found, that the pursuer had good right upon all that was libelled conjunctim, viz. they being jewels, and being clandestinely abstracted, by such as the defenders might have known could not belong to Mr Robert Byres, pursuer therefor, rei vindicatione.
