Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Robert Fall, bailie of Dunbar, v. The Relict of James Fall
Date: 7 February 1693
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The Lords repelled the objections against the decreet of general declarator of escheat, that it did not fully deduce the executions of the horning, and though the denunciation bore that the messenger's stamp was affixed, yet no vestige of any such stamping appeared; for the Lords considered that it was not a recent horning, and that their impression is slight, and soon wears of; and, therefore, found these were no nullities; seeing in a stronger case of an inhibition, on the 19th Dec. 169O, between Doctor Sibbald and Mackell, they found it no nullity after fifteen years, though there appeared no vestige of the stamp. But as to the 2d point, they sustained this allegeance as relevant, that thir goods were not the relict's nor her second husband's, whose escheat they were declaring; but were truly the moveables of Embleton, her first husband, and belonged to his children, and were only detained by their mother, and made use of by her and her second husband. For though possession in moveables be a presumptive title, yet it is elided by a positive contrary probation, offering to prove the property belonged to another, and that your entry to the possession was by retaining them in the house after your husband's death. But found, that the wife's share of these goods, whether a third or a half, if not excluded by her contract of marriage, fell under the husband's jus mariti, and consequently under his escheat pro tanto.
