Possession, how presumed, and what presumed from it.
Subject_3 SECT. II.
Possession of Moveables presumes Property.
Fergusson v. the Officers of State
1749.
January. Case No. No 287.
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The creditors of the deceast John M'llvain, a bastard, having assigned their debts to James Fergusson, in order to his constituting the same against the Officers of State, Fergusson inter alia brought a proof by witnesses, that one of his cedents, Wiliam Cunninghame of Auchinskeith, having, in the end of the year 1744, poinded from one of his tenants four cows, three horses, &c. John M'Ilvain got the same from him, and kept and disposed thereof; but the witnesses added, that they were not present at any bargain between them; but that, in their judgment, the cows were worth about L. 67 Scots, and the horses about five guineas.
Upon advising this proof, the Lords “found the proof not sufficient to instruct a debt against John M'llvain; because possession in moveables presumes a title; and the possessor cannot be subjected to restitution or payment of the value, unless it be instructed that the possessor desiit possidere, by a bargain of sale or otherways, that would subject the present possessor to restitution or payment.” Vide February 3d 1672, Scot of Gorenbery contra Elliot, voce Proof.
