[1710] Mor 9123
Subject_1 MOVEABLES.
Date: Pringles
v.
Gribton
3 January 1710
Case No.No 17.
Found in conformity with Ramsay against Wilson, No 5. p. 9113.
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The children of the deceased David Pringle chirurgeon in Edinburgh, having staid with their aunt, Maxwell of Kirkhouse's Lady, and being minors, they delivered into her custody some rings and jewels of their mother's paraphernalia, and got her husband's receipt and her's, obliging to redeliver. The
Lady having borrowed L. 16 Sterling from Irvine of Gribton, for his better security she impleged these rings and jewels to him, and he obliges himself to restore them when paid. The Pringles getting notice where their mother's rings were, pursue Gribton for restitution, and refers his having them to his oath. He depones, That the Lady Kirkhouse being his debtor by a bond produced, in L. 16 Sterling, she impignorated the jewels in his hands, and told him nothing of their being another's, and he really believed them to be her own. When this oath came to be advised, it was alleged for the children, Wherever they could find their own goods, they could recover them rei vindicatione; but ita est they proved their property in them by their aunt's obligement prior to the impignoration (for if her declaration had been after, it would not have been so probative,) and the defender's oath proved the having. Answered, His oath could not be divided, for he declared they were given to him as truly belonging to the Lady, who impleged them, and were not unsuitable to her quality to have the like; and this obligement is but personal, and may give them recourse against her, and her heirs, but can never take the rings out of his hands till he be paid. The Lords found the Lady's obligement constituted the property of the rings in the Pringles, they being the mother's, (who was unfortunately executed with Daniel Nicolson) and her impignoration could not alter the case, though he was ignorant of their right; and therefore decerned him to restore them, reserving him action for his debt against the Lady's representatives, as accords of the law; for it was in effect a acpositum proved by writ, which no deed of the depositarius could invert contrary to his trust.
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