In moveables lawful possession presumes property, unless the possession be proved to be such as could not be by bargain, or gift.
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Gorrinberry, as executor to his father, pursues Adam Elliot for restitution, or the value of ninescore sheep, which he carried away off the ground of Gorrinberry, and which belonged to the pursuer's father. The defender alleged, That the libel is not relevant, because possession in moveables presumes a title, seeing there use not witnesses or writ to be adhibited in the commerce of moveables, and therefore restitution of moveables is never sustained upon naked intromission; but it must be condescended and proved, not only that the pursuer had possession, but quomodo desiit possidere, and that the goods were either violently taken away by spuilzie, stolen, or strayed, set, or impignorated; but if intromission only with moveables were sufficient to infer restitution, all the bargains made for moveables would force the acquirers to restore, unless they could prove the cause of their intromission, which would marr all commerce.
The Lords found the libel not to be proved otherways than by the defender's oath, that thereby he might qualify the cause of his intromission, and would admit no witnesses, unless the pursuer condescend upon the way how he ceased to possess, which might take off all presumption that the intromission was not upon any bargain or gift, but was vicious.
Fol. Dic. v. 2. p. 270. Stair, v. 2. p. 59.
*** A similar case is reported 27th January 1665, Scot against Fletcher, No 287. p. 11616, voce Presumption.
