Patrick Mortimer in Cowper, v. James Archibald, and Others
Date: 5 January 1710 Case No. No 42.
Intromission with a defunct's moveables being referred to the parties' oaths, and they having deponed that they were gifted to them by the defunct, the quality of being gifted, was found, intrinsic.
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In the cause at the instance Patrick Mortimer, as executor confirmed to Agnes Wilkie, relict of Fotheringham in Kennoway, against James Archibald, and others, for repetition of goods and money belonging to the defunct, and abstracted by them, the libel being referred to the defenders oaths, they deponed, that Agnes Wilkie, some weeks before her, death, gifted and delivered to them certain particulars in goods and money, partly, to see her honestly buried, partly, in requital of their attendance on her during her sickness.
The Lords found the quality of being gifted, intrinsic to the oath, and a sufficient ground to assoilzie the deponents. Albeit it was alleged for Patrick Mortimer, That qualities super facto alieno are never reckoned intrinsic, 6th November 1667, Fife contra Daw, No 46. p. 13233.; and that the things were gifted, is the fact of another person which should be proved, and donatio nun-quam præsumitur. In respect it was answered. That intromission with moveables being referred to a party's oath, he might qualify the cause of his intromission, 3d February 1672, Scot contra Elliot, No 36. p. 13228.
