A relict having, at her own hand, impignorated the defunct's moveables, and, among the rest, his heirship moveables, the heir was found to have a good action against the possessor.
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John Semple, merchant in Edinburgh, having died without testament, and his children being infants, Agnes Martin, his relict, their stepmother, continued in possession; who having married a second husband, they impignorated a part of the goods to David Givan, and others, for security of sums borrowed from them; Agnes, only child to the said umquhile John, pursues the said David Givan, and others, havers of the goods, for delivery of the heirship moveable; and produced a declarator by Agnes Martin, expressing the particular goods. The defender alleged, Absolvitor; because, the goods in question being moveable, possession presumes a title, et possessor non tenetur docere de titulo; and they having impignorated the goods for sums of money delivered by them to Agnes Martin and her husband, who had continued long in possession of the goods, it is sufficient for them, without enquiring to whom they belonged before; which is necessarily introduced for commerce; because, moveables passing from hand to hand, without writ, if any party who once had right to them, should thereupon pursue the posterior acquirers, and should overtake them, unless they could instruct a progress, which is scarce possible, no party could be secure, and all commerce behoved to cease; and though in rebus furtivis, the Roman law hath introduced labem realem, which makes the goods recoverable from any singular successor, that can be extended to no other case, nor is it here pretended; 2do, Agnes Martin had the communion of goods, and a half, or third was her's, and the property of heirship moveable cannot be in the heir, till they be chosen and drawn; for the best of every kind is according to the fancy and choice of the party; until which choice be made, the heir can have no constituted property, and so cannot pursue restitution, which is rei vindicatio. It was answered, That, albeit in moveables, lawful possession infer a presumptive title, and that one having had a prior right cannot put the present possessors to instruct their progress, yet that rule hath this exception, except the prior proprietor doceat quomodo desiit possidere, or that it was in such way, as that the goods could not pass by sale or commerce, as if the goods were stolen, or if they had strayed; and there is no way more competent than by the death of the proprietor; for, if it be instructed that the proprietor had the goods in his possession at his death, it doth fully take off the presumption, that they passed from him by sale or commerce to these defenders; and if this were not sustained, any insolvent person possessing the goods of defuncts, and selling the same, their children, or nearest of kin, should be for ever excluded; nor hath it any importance that an heirship was not drawn, because the pursuer being the only child, hath right to the whole moveables, except the wife's part; and though the relict's declaration should not prove, the pursuer offers to prove the goods in question were in her father's possession the time of his death, as his own goods.
The Lords repelled the defence, in respect of the reply and condescendence foresaid, unless the goods impignorated, and others intromitted with by the wife, did not exceed her share.
