Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Captain Hume
v.
Anna Livingston

Date: 4 July 1678

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Captain Hume, having confirmed himself executor to his mother, and confirmed a necklace of pearl, pursues Anna Livingston, and John Acheson her husband, for delivery thereof.

The defender alleged, Absolvitor; because, in moveables, property is presumed from possession; and none are put further to instruct their author's right or their own. Ita est, the defender hath possessed this necklace for nine or ten years.

It was answered for the pursuer, That, albeit possession infer a right of property in moveables, yet that is but presumptive, and admits of contrary probation by the possessor's oath; or otherwise, by condescending how the proprietor ceased to possess, either by stealing, straying, or by the death of the proprietor; as, in this case, the pursuer, being a soldier abroad, offers to prove that this necklace was in his mother's possession in the time of his mother's sickness whereof she died, and so could not be transmitted by any but by an executor confirmed to her. And, albeit the pursuer, being absent when his mother died, suffered his sister, who was with her mother when she died, to keep this necklace till she died; at which time the defender, being her relation, and with her, got the necklace in her hands; but neither his sister nor the defender could have any right thereto.

It was replied, That the defender's sister got this necklace in gift from her mother, and did wear the same in her mother's life; and, therefore, seeing the sister might have gifted the same, the defender is obliged to instruct no farther than possession: and yet, ex abundante, she is content to depone she got the same from the pursuer's sister; which is sufficient to fortify the presumption of possession by the pursuer's sister ten years before her death, and the defender, several years after her death.

The Lords found the pursuer's answer relevant, viz. that this necklace was in his mother's possession the time of her death; unless the defender offer to prove that the pursuer's sister wore this necklace before her mother's death, or the sickness whereof she died: at which time, no gift or legacy without writ were sufficient; seeing the necklace, by the acknowledgment of both parties, exceeded £100 Scots.

Vol. II, Page 627.