Scottish Court of Session Decisions

Subject_1 PASSIVE TITLE.
Subject_2 DIVISION IV.

Vitious Intromission.
Subject_3 SECT. I.

In which circumstances intromission does or does not infer a Passive Title. - Action transmits against heirs in valorem only.

Laird of Abercairnie
v.
Nicol

Date: 15 June 1675
Case No. No 151.

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In a concluded cause at the instance of the Laird of Abercairnie against Nicol, as behaving as heir, or vitious intromitter with his father's goods, for payment of one year's rent due by his father;

The Lords found vitious intromission proved by the defender's making use of his father's tools and instruments, who was a wright, and the son being also a wright, and continuing to work with the same, albeit there was only one witness that proved that he disponed or sold any part of the work-looms.

Fol. Dic. v. 2. p. 41. Stair, v. 2. p. 329. *** Gosford reports this case:

June 5. 1675.—In a pursuit at Murray of Abercairnie's instance against Nicol, as representing his father, at least vitious intromitter, in so far as he being a wright, he did make use of the work-looms, and employed the same for the space of a whole year after his father's decease, ought therefore to be liable for his father's debts;—it was alleged for the defender, That the making use of work-looms could infer no passive title, or make him vitious intromitter, seeing the defender having nothing left him, and being but a tradesman, did employ the same for his livelihood for some time; but his mother, who had intromitted with all the rest of his father's means, did thereafter sell and dispose upon the said work-looms, and so she could only be pursued as vitious intromitter.—— The Lords did repel the defence, and decerned Nicol to make payment; which seems hard, he not being an apparent heir, nor having made profit by a vitious intromission; and passive titles being of so great import, ought to be qualified with great circumstances.

Gosford, MS. No 755. p. 469.