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Scottish Court of Session Decisions >>
Mitchell v L. Caprington. [1626] Mor 12723 (14 December 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Mor3012723-612.html Cite as:
[1626] Mor 12723
In a rei vendicatio it is not sufficient to prove the pursuer's property, unless he prove further quomodo desiitpossidere, because writ not being necessary to the transmission of moveables, possession presumes the defender has acquired lawfully
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In an action at the instance of Robert Mitchell against the L. Caprington, for making of certain silver work, as bason, laver, cups and spoons, arrested in his hands, as belonging to the Lady Ochiltree, and so as pertaining jure mariti to Andrew Lord Stewart of Ochiltree, her husband, debtor to the pursuer, to be forthcoming for satisfying of the said debt; it being controverted, how that part of the summons, viz. bearing the said silver work to pertain to the Lady, should be proved, seeing the defender, Caprington, alleged, That it could not be proved by witnesses, but allenarly either by writ or oath of party, especially seeing it was a matter of great importance, and that there was no special qualification libelled then how the same pertained to her, either that she bought the same, or that they were marked with her name, nor any other qualification to make them pertain to her; this allegeance was repelled, and the summons was sustained, bearing the same to pertain to her, which the Lords found might be proved by witnesses, and no necessity of writ, or to refer the same to the party's oath; for the defender might allege and propone his defence upon any other person's right to the same, if they did not pertain to her, wherein he was not prejudged by this interlocutor, if he pleased to propone the same. But J. C. Dominium non potest probari per testes quia, Incorporalia non cadunt sub sensibus. Vid. Bartol. Tract. De Testibus.
Act. Mowat.Alt. Cunningham.Clerk, Gibson.
Fol. Dic. v. 2. p. 270. Durie, p. 246.
