Witnesses were admitted to prove intromission with a sum of money that was about a defunct at the time of his death.
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Matthew Moffat, as executor dative to William Moffat, pursues Mr George Phin, to make payment of L. 150, which William Moffat had upon him the time of his death, and was intromitted with by Mr George Phin; who alleged, that the defunct being a beggar, and none of his relations known, and dying at St Lawrence, where the defender was minister, he represented the case to the Usurper's Council of State, who gave warrant to intromit with the beggar's money, and to bestow it upon the poor of the parish, which he did accordingly, and that the pursuer can shew no contingency of blood to the defunct; 2do, He denied the quantity, and being libelled to be above L. 100, the same is not probable by witnesses, not being goods, but a liquid clear sum of money. It was answered, That the warrant of no council could take away the right of the defunct, or any representing him, and that it was impetrated by the defender, and so was on his own peril; and as to the manner of probation, albeit witnesses cannot be admitted to prove the borrowing or delivery by paction, of a sum exceeding L. 100, because it was the fault and negligence of lender, in omitting to take writ, but intromission with the money of a defunct, being unwarrantable by way of paction, or without paction, it is probable by witnesses, where writ uses not, nor could be adhibited.
The Lords found the intromission and quantity probable by witnesses, but ordained to pursuer to condescend, and instruct any contingency of blood to the defunct, and if none could instruct relation of blood to him, the money would belong to the King, and he would ordain the distribution thereof to the poor.
Fol. Dic. v. 2. p. 225. Stair, v. 2. p. 22.*** Gosford reports this case:
In a pursuit at Moffat's instance against the minister and elders, as intromitters with the species of money, extending to L. 158, which William Moffat had by him when he died, it was alleged, That intromission with money above L. 100 was not probable by witnesses, seeing it constituted the defenders debtors. It was replied, That albeit by our law, no persons can be constituted debtors, either by paction or promise for a sum above L. 100, yet intromission with the species of money being factum quod cadit sub sensum is probable, as is intromission with any other goods or gear. The Lords did find the intromission probable by witnesses.
