Scottish Court of Session Decisions

Subject_1 PASSIVE TITLE.
Subject_2 DIVISION IV.

Vitious Intromission.
Subject_3 SECT. V.

How and to whom competent to insist upon this Passive Title.

Captain Ramsay
v.
William Henderson

Date: 21 January 1671
Case No. No 187.

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Captain Ramsay, as assignee constituted by Eupham Scot, to a sum of 2000 merks, addebted by umquhile Mr Charles Henderson, pursues his heir for payment, who alleged, Absolvitor, because this debt being due originally by Mr Charles Henderson, and by the said Eupham Scot, who being vitious intromissatrix with his goods and gear, and having been assigned to this sum herself, she became creditrix as assignee, and debitrix as vitious intromitter, et confusione tollitur obligatio, and this pursuer having right from her, can be in no better case than she. It was answered, That vitious intromission was not competent by way of defence.

The Lords found that whatever might be said, if the vitious intromitter had been pursuing, whether the defence might have been competent, yet found it not competent against the assignee, seeing the cedent was not in campo, and probation behoved to be used against her.

Fol. Dic. v. 2. p. 44. Stair, v. 1. p. 705.