Scottish Court of Session Decisions

Subject_1 MOVEABLES.

Forsyth
v.
Kilpatrick

Date: 18 November 1680
Case No. No 11.

Restitution of a horse sustained against a bona fide purchaser from a person to whom the owner had lent him.

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William Forsyth pursues Hugh Kilpatrick, to deliver to him an horse, hired by him to one Vauchan to Irvine. The defender alleged, Absolvitor; because he had bona fide bought the horse, and paid the price, and the property of moveables is always presumed by possession, much more when he offers to instruct his right. Is was answered, That the presumption is excluded by the pursuer's libel, offering to prove the horse his own, and that he did not sell him, but set him for hire, and, therefore, hath rei vindicationem against any haver thereof, whether he acquire bona fide or mala fide.

The Lords repelled the defence, in respect the pursuer offered to prove, that the horse did not pass from him by alienation, but by location.

Fol. Dic. v. 1. p. 592. Stair, v. 2. p. 801.