Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Mary M'Whirter
v.
Robert Millar

Date: 21 July 1743

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[Kilk., No. 3, Service, &c.; C. Home, No. 247; Elch., No. 18, Husband and Wife.]

Here there were two questions: 1mo, Whether possession, in this case, was equal to a confirmation; 2do, Whether, upon the supposition that it were so, there was any evidence here that the son had possessed his mother’s third of moveables, or if the father’s possession, considering that the son was minor, and he his administrator-in-law, could be accounted the son’s possession.

As to the first, the Lords, upon a hearing in presence, found, by a great majority, that there was no necessity for a confirmation, and that the possession was sufficient. But, that the decision may not be thought to apply to every case, the circumstances of this case are well to be considered: 1mo, The subject-matter in dispute was household furniture and plenishing; there were no nomina debitorum, which it was allowed required confirmation to their transmission, because of them, as being jura incorporalia, there could be no possession. And it seemed to be the opinion of the majority, that, even if the debtors made payment, the sums would not be transmitted, and they might be obliged to pay over again to the next nearest of kin making up his titles. 2do, It was a continued possession for many years, and not a momentary one; but, as to the disposal of the moveables, the decision did not seem to rest upon that, and it would have gone the same way if there had been only possession. 3tio, There was only one nearest of kin at the death of the brother, who entered into possession; so that, if there had been two or more, and one, without consent of the rest, had laid hold of the goods, the decision would have probably gone otherways. Actores, Andrew M'Douall and Alexander Lockart.