Scottish Court of Session Decisions

Subject_1 WITNESS.

Wilkie
v.
Morison

Date: 21 July 1675
Case No. No. 76.

Women were not admitted to prove the leading of a bed by a mother-in-law to a daughter-in-law, who lived under the same roof.

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Agnes Wilkie having pursued Christian Morison as heir to her husband, for aliment of her child, mournings, and funeral expenses; in which the defender alleged compensation, because the pursuer intromitted with a furnished bed belonging to the defunct, and his heirship falling to the defender as heir, which is worth 600 merks. Compearance was made for the pursuer's mother, who alleged that the bed belonged to her, and was lent by her to the defunct her good-son, who dwelled under the same roof with her, and had been only a short time in his possession, which she offered to prove by the oath of her daughter, the pursuer, and some women servants. It was answered, That in moveables possession presumeth property; and it is acknowleged that the defunct died in peaceable possession of this bed which was in his house, and not in his good-mother's family; and albeit the allegeance of lending the bed be relevant to exclude the presumptive right of property, yet it must be proved habili modo, by habile witnesses, and not by women. It was replied, That the matter was domestic, in which women witnesses are adhibited in important cases, as that a living child was born, and the property being only by presumptive probation, any positive probation to the contrary is sufficient. It was duplied, That albeit women be admitted witnesses at the bearing of a child, where men cannot be present, they were never admitted in any other civil process.

The Lords found the reply of lending the bed relevant to be proved by habile witnesses, but refused to admit women witnesses.

Stair, v. 2. p. 355.