Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Christian Blair v. Bessie Cumming and James Johnston
Date: 30 December 1697
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I also reported Christian Blair, attending the Countess of Home, against Bessie Cumming, and James Johnston, indweller in Canongate, her husband. Christian, having some gowns and other clothes stolen from her, to the value of £200 Scots, and discovering one of these gowns was in the hands of the said Bessie, she pursues her before the Bailies of the Canongate, not only rei vindicatione, for restoring that gown, but likewise for the whole stolen at that time from her, super hoc medio,—that you, as guilty of the reset of that theft, must be liable for the whole damage. Bessie, thinking herself aggrieved by the Bailies' interlocutor, procures an advocation; and, at discussing, insisted on thir reasons, That the Bailies had committed iniquity in not ordaining Mrs Blair, the pursuer, to prove quomodo desiit possidere; 2do. That she did not first discuss the principal thief; for, if the principal were assoilyied, there could be no punishment for reset; 3tio. They had been iniquitous in sustaining and inferring her knowledge from presumption, viz. That she dwelt in the neighbourhood, and the hand-bell intimating the thief went daily by her door, and the proclaimer ordinarily came in and drank in her house;—all which might be true, and yet the marks and qualities of the stolen goods never come to her knowledge; 4to. They committed iniquity in stretching it to the whole goods stolen; 5to. Though they sustained her defence, That the gown was pawned and impignorated in her hands for a little money, which is a fair and usual bargain, yet they would not allow her to prove this by women-witnesses, though others are seldom present at such transactions.
Answered,—The Bailies committed no injustice; for they ordained the pursuer to prove that her clothes were amissing; and, as to the second, There was no need of convicting the principal thief, where they are not insisting ad criminalem effectum, to put the resetter to the knowledge of an assize, but only are craving damage and interest:—To the third, Her knowledge must be presumed; for Janet Robertson, whom she names as the impignorator, is a notorious strumpet and thief, enacted in the Court-books as such; and this very defender is pessimœ famœ, and under the name of a common resetter; and it is ignorantia affectata in her to pretend nescire id quod omnes de vicinia sciunt:— To the fourth, Reset would have no singularity at all if it did not operate more than the mere restitution of what is found beside them; and, therefore, to discharge that wicked trafficking, they must be liable for all, as is practised in thefts committed in the Highlands:—To the fifth, If women be allowed to prove
these hypothecations of goods, it shall palliate that usury and infamous trade of resetting stolen goods under the pretence of pawning them for money; and they shall adduce the pawners and thieves for witnesses; and women, being inhabile in law, much more are these in such hidden bargains. Therefore the Bailies did justly in ordaining the impignoration to be proven per testes omni exceptione majores.
Some of the Lords thought the Bailies had stretched the case too far, and were for remitting it back, with some qualities and directions; but the plurality remitted it simply, to discourage that too frequent trade of resetting stolen goods under the borrowed name of pawns.
