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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Hewat v. Murdoch
Date: 5 December 1693
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The Lords advised the cause betwixt Hewat and Murdoch, and considered that the father had given up and confirmed the goods that fell to his son by the death of his uncle, and valued them at 2000 merks; and his shop being afterwards burnt, he alleged his son's goods were therein, and so perished; and he being on death-bed, on a bill given in by his wife, stepmother to the said Hewat, the son of the first marriage, he was ex officio examined, and deponed, That many of his son's goods were burnt. The son had also a probation allowed him, whereby he made it appear, that, ere the fire came to the shop, Hewat, the father, removed most of the ware; and when the witnesses offered to help him, he locked the door, and said he had left little that was of any value.
The Lords, having balanced the two probations, they found the father's oath could not be the rule; seeing he could not swear his own exoneration, and seeing there was seven years between the confirming the inventory and the accidental fire, in which time he might have sold them off; and that he preserved most of his own goods in the shop: therefore they found him liable for the 2000 merks; notwithstanding some of the witnesses deponed, That, amongst the rubbish, there were scissors, razors, and other iron-work found; which showed that Hewat had loss, and had not removed all; and some of his son's goods might be there. Some Lords proposed, that, by his confirming promiscuously, the property of the goods became the father's; and so they behoved to perish to him: but the Lords repelled this, in regard the dominion of the confirmed goods is not established in the executor's person, till either it be executed by a sentence, or innovated by a new security given to the executor.
