Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION I.

Allegeances how relevant to be proved.
Subject_3 SECT. XI.

Mandate, Order, Allowance, Tolerance, &c.

Hariot
v.
Cuningham

Date: 21 May 1791
Case No. No 215.

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Hariot sued Agnes Cuningham for delivery of a gown, petticoat, and tablecloth, his property, of which he alleged she had got possesion without cause and without his consent. The defender admitted, that the articles were in her hands, but urged, that they had been pledged by the pursuer's wife for the balance of a shop-account due by her and her husband; of which allegation, however, she had no other proof than an irregular account-book where the articles were entered, as also the balance due. The Lords were of opinion, That the defender being in possession of the articles, was in law presumed to be the owner: That the pursuer had no proof to the contrary, but the defender's own admission, which it therefore behoved her to take with the quality annexed; otherwise he must prove his property, and the modus quo desiit possidere, as he best could: They therefore found, That the defender was not obliged to give up the articles unless on payment of the alleged debt. See Appendix.

Fol. Dic. v. 4. p. 160.