Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Lady Dalry v. Archibald Home
1698.
February12and
July1.
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February 12.—The Lady Dairy, as donatar to her husband's escheat, pursues Archibald Home, the late tenant there, for the price of the stocking he received at his entry in 1686, viz. horses, corn, straw, &c. to a great value.
Alleged, 1mo. Prescribed by the Act of Parliament 1669, not being pursued within five years. Answered,—This being vitious intromission, it falls not under the Act. 2do. It was interrupted within the years by the gift, &c. Whereupon the Lords repelled the allegeance.
3tio. He offered to prove payment, and produced John Cheisly's discharge. Alleged,—It was null, being both destitute of the writer's name and the witnesses'. Answered, 1mo. A receipt from a master to a tenant needs not these solemnities. 2do. He had a ratification of it signed before witnesses. Replied,—This was not a discharge of rents, and had many other marks of suspicion; and the ratification could never supply the defects, it being signed by him after he was imprisoned and condemned to die for murdering President Lockhart: and if the discharges or declarations of criminals were then to be regarded, they would soon evacuate all their escheat falling to the King and the fisk; and, besides the rule, quod ab initio vitiosum est tractu temporis nequit reconvalescere, it is farther clear, that damnatus ad mortem habetur pro nullo et civiliter mortuo, and can then do no valid deed; as Faber shows, lib. 9. Codic. tit. 28. definit. 4.
The Lords found this discharge, joined with the other circumstances, not probative of the payment.
Vol. 7. Page 824.
July 1.—In the action pursued by the Lady Dairy against Archibald Home, mentioned 12th February 1698; his discharge being rejected as not probative, it was now alleged for him,—The subject acclaimed being moveables, and he being in possession of them several years unquarrelled, before raising this pursuit, the said delivery and possession presumes property, there being no other title required for the transmission of moveables, unless the former dominus instruct quomodo desiit possidere; and that it was clam, vi, vel prœcario, or by such a title as does not admit dominion.
Answered,—It is very true, a person buying goods in a public market, the seller is presumed proprietor, and I, the buyer, am secure by my possession, else the commerce of moveables would be too much restrained; but that is not the case, for here is a vast intromission with moveables, above 7000 merks, without any title; and every vitious intromitter might pretend this.
The Lords sustained the title founded on the presumptive dominion arising from his possession. This being conjoined with the discharge, whereof it was proven the Lady had a double among her husband's papers, and on which Archibald had written an obligation to deliver some straw to Dairy, and she had counted with him several years without excepting this claim; and Dairy had, by letters, desired him to borrow money for him, which he would not have done had Archibald been his debtor in that sum; upon all which conjoined together, the Lords assoilyied.
