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.

Reoch
v.
Cowan

Date: 26 February 1668
Case No. No 150.

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Reoch pursues Cowan, as representing a defunct, to pay a debt due by the defunct to the pursuer, who alleged absolvitor, because Reoch was vitious intromitter with the defunct's goods, in so far as he lifted L. 50 belonging to the defunct, and gave his discharge, produced; and albeit thereafter he confirmed himself executor dative, yet he wilfully omitted that sum out of the confirmation, and so, as vitious intromitter, is both debtor and creditor, and cannot pursue the heir.—It was answered, That this was res modica, and could not infer the passive title.

The Lords found that this sum inferred not a general passive title, but only that it made him accountable for the sum.

Fol. Dic. v. 2. p. 42. Stair, v. 1. p. 537.