Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

John Blair
v.
Bailie Græme

1685. December.

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John Blair having raised a summons of rei vindicatio of a Polish bridle, worth £50 sterling, against Bailie Græme;—it was alleged for the defender, That rei vindicatio is only competent contra possessorem, which the defender is not. 2. The said bridle was lawfully poinded and apprised to the defender from Thomas Douglass, his debtor, in satisfaction of a part of the debt, and was thereafter, bona fide, disposed on as lawfully poinded, the defender having reason to think it belonged to Thomas Douglass, since possession of moveables presumes property. And the defender having discharged his debtor of the like sum for which the bridle was appreciate, he but suum recepit, which ought to defend against rei vindicatio as well as condictio indebiti. Answered for the pursuer, Though directa rei vindicatio be properly competent contra possessorem, yet the actio utilis is competent against any person who received benefit by the thing in quantum lucratus, and the defender must be liable for the price, as surrogatum; otherwise persons might come to be disappointed of their property by the extinction or loss of the subject: and the defender's oath of calumny is craved, if he had no reason to think that the bridle belonged not to Thomas Douglass. The Lords inclined to repel the defence; but, before answer, ordained some points of fact to be inquired into.

Page 258, No. 917.