Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Russel of Elrig v. Campbell of Kilpont
Date: 23 December 1699
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In the concluded cause, Russel of Elrig against Campbell of Kilpont, young Elrig being debtor to Kilpont, he poinded a mare he found in his possession. Elrig, elder, pursues Kilpont for a spuilyie, and offered to prove the mare belonged to him in property; which probation being advised this day, the Lords found the witnesses deponed that the mare was old Elrig's in 1690; but did not think this sufficient, seeing, at the time of the poinding, she was in the son's custody and possession, and grazing with his horses; which possession in moveables both presumes and proves property, unless old Elrig had likewise proven quomodo desierat possidere, that either he had lent her to his son for a time, or had only sent her to graze in his ground. And it is not enough that he was once dominus of the mare; for law presumes that, being in the son's possession the time of the poinding, she was his; and he might either have bought her, or got her in gift from his father some days before the poinding. If I have a watch, it is not relevant for the watchmaker to say, I offer to prove that watch was mine last week, to give him rei vindicationem; but he must also prove quomodo he lost the possession, else it is presumed to be mine who now have it; for the dominion of moveables transmits without writ, and oftimes without any witnesses present; and therefore, ere you can recover them, you must first prove that you lost the possession, clam vi, or precario, or by some title not alienative of the property, as loan or the like.
