Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION IX.

Rights when presumed simulate.
Subject_3 SECT. I.

Disposition of moveables retenta possessione.

Bowis
v.
Barclay of Johnstoun

1662. June.
Case No. No 246.

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Robert Bowis alleging, that John Wood was debtor to him in a certain sum of money, as cautioner for John Strachan of Haugh-head, and having arrested certain goods in the hands of John Barclay of Johnstoun, pursues to make the arrested goods furthcoming. It was excepted by the defender, That the goods pertained to himself, by a disposition from the said John Wood, for a very onerous cause, viz. for farms and duties owing by him to the defender, his master, long before the arrestment. It was answered, That the disposition was made retenta possessione for the space of divers months; and, before any possession apprehended, Wood was denounced rebel at the pursuer's instance, and consequently the disposition was null quoad the pursuer. It was replied, That the disposition being made before the disponer was rebel, he might lawfully suffer the disponer (his own tenant) to keep still the goods, as long as he pleased, the rebel's escheat not being gifted and declared; and the act of Parliament doth not annul any disposition before the rebellion, but only such as are made stante rebellione.

The Lords found the allegeance and reply relevant.

Fol. Dic. v. 2. p. 156. Gilmour, No 45. p. 33.