Presumption of simulation from the rebel's continuing in possession, taken off by contrary presumption.
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Mr George Dickson pursues a declarator of the escheat of William Gordon, wherein compearance is made for Sir Alexander M'Culloch and John Blair, in whose name he had obtained a gift of the said William his escheat under the King's hand, who alleged, That the pursuer's gift is null, as being simulate, and to the behoof of the rebel, upon these evidences, That it is taken by Mr George Dickson, who is ordinary agent to William Gordon; and that it was four years past in Exchequer before it was taken out, during all which time the rebel was suffered to retain possession; that the rebel hath concurred and colluded to prefer this pursuer's diligence, having returned the process, and the same day of the return without inrolment, consented to the calling and decerning of declarator. It was answered, That the grounds of simulation are not relevant; for the retention of possession is only after the gift was expede, and the reason why it was not craved out here was, because William Gordon had no moveable right, but the expectation of a spuilzie against Sir Alexander, which was dubious, and but lately determined; that William Gordon's concourse doth not import simulation, because Mr George Dickson hath granted back-bond to the Exchequer in favour of William's creditors, and Sir Alexander's gift is without back-bond; so that the pretence of simulation is taken off by the back-bond in favour of the creditors, Mr George having no benefit by it but his own satisfaction; and all being but light presumptions, præsumptio cedit veritati, Mr George is content to depone that the gift is not to the rebel's behoof, but for satisfaction of debts to himself and several others of William's creditors, at whose desire he took the same.
The Lords found the back-bond to the Exchequer, and the oath of the donatar, sufficient to elide the presumption of simulation.
