[1710] 4 Brn 777
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.
Date: Patrick Mortimer
v.
James Archibald
5 January 1710 Click here to view a pdf copy of this documet : PDF Copy
Agnes Wilkie, a widow in Kennoway, being obliged, in her sickness, to some of her neighbours, and particularly to James Archibald's family, who waited day and night upon her, three or four weeks; before her death, gifted and delivered to him about £11 or £12 sterling, taking his promise to bury her honestly, and to take the rest to himself for his pains. Her friends being ignorant of this, and never acquainted till she was dead, Patrick Mortimer in Coupar, one of her nearest relations, confirms himself executor, and pursues James Archibald for restitution of the defunct's goods and money he had intromitted with, and refers the same to his oath; who depones in manner foresaid, that the same was gifted, and delivered to him out of her own hand, some weeks before her death, in the terms abovementioned. And this oath coming to be advised, it was alleged,—The qualities adjected were extrinsic, and must be otherwise proven by witnesses present, who saw her deliver the money, and heard the terms on which she gifted it; and if they did it clandestinely, without adhibiting witnesses to be present, sibi imputent; for, though possession of moveables
infers a presumptive title, yet it admits of pregnant presumptions to elide it,—as that they were in the woman's possession about the time of her death; and as donation is never presumed, and at most is but donatio mortis causa, which cannot subsist above £100 Scots; and this gifting, being factum alienam, must be proven by witnesses: else we open a door to wives and servants about defuncts, when they are expiring, to put to their hands to moveables; and when they are pursued, to defend and discharge themselves, by saying they were gifted; which encourages both theft and perjury to cover it: And as nemo prÆsumitur donare, and that semel dominus is presumed to continue so, till it be proven quo modo desiit possidere; and that he who depones super facto alieno, must prove it, by Dirleton's Observe, 16th November 1 672, Fife against Daw; so here their oath can never exoner them. Answered,—Possession in moveables must presume property, else all commerce would be at a stand; and if you refer it to the party's oath, and he depone anent the cause and title of his possession, that it was by gift, sale, excambion, or the like, the same is probative and intrinsic, and cannot be divided; as the Lords found, 3d February 1672, Scot against Elliot.
The Lords found the qualities adjected to the oath intrinsic, and required no other probation; but, in regard it was insinuated that the woman was imposed upon, and her sickness concealed from her nearest relations, who lived within four or five miles of the place, they allowed them to condescend on any relevant qualifications of fraud or circumvention, seeing it is fit dying persons should be free of all importunity, solicitations, and impressions.
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