A donatar of escheat having pursued intromitters, they pleaded the goods did not belong to the defunct. They were not, after failing to prove this, allowed to deny intromission.
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In the concluded cause, Robert Fall, Bailie of Dunbar, against Margaret Niobet, and Charles Emilton, her son; the Lords found Emilton liable for the moveables, seeing it was not proved, in the terms of the act, that they belonged to the first husband; and the second husband dying in possession thereof, it presumed property, and so made them fall to Fall, the pursuer, donatar to his escheat; and he needed not prove the defender's possession of the same, seeing the defence was proponed without denying their intromission, quantities, or prices. Against this interlocutor Emilton gave in a petition, representing, it were hand to make the negligence or omission of his Advocates, or the Clerk, in proponing or minuting the debate, to bind him, and it was only sustained as a tacit acknowledgment of the libel, where a defence of payment was founded on, but not in other exceptions; and cited Zoesius, ad tit. D. De Probationibus, that a defender's succumbing to prove his defence does not exoner the pursuer from proving his libel; and farther alleged, That he, his mother, and brother, being all convened in one summons, the decerniture ought to divide, and he only be found liable for a third.—Answered for Bailie Fall, He was not in the case stated by Zoesius, where actor nihil probavit; for he had proved these goods were in the rebel's possession the time of his decease, and they being all correi debendi, were liable in solidum, it being only a continuation of a joint possession, and all had accresced to him by the other's death.—The Lords, refused the bill, and adhered to their former interlocutor. But he at last recurring to minority, and alleging he was minor at the time, the Lords would not receive it hoc ordine, not being instantly verified, but reserved his reduction, as accords.
Fol. Dic. v. 2. p. 187. Fountainhall, v. 1. p. 692.
