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Laird of Coxtoun v Adam Duff of Drummore. [1682] Mor 9670 (16 February 1682)
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[1682] Mor 9670
Intromitting with the Predecessor's Writs and Evidents.
Laird of Coxtoun v. Adam Duff of Drummore
Date: 16 February 1682 Case No. No 28.
The reverse of No 26. p. 9668.
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The tutors of an apparent heir (whose predecessor died after expiring of the legal of an apprising against him) having intromitted with the charter-chest and writs, and received from the pupil after his majority a discharge of all their actings and intromissions; and he having continued in possession of these writs after he was major, he was pursued ex eo capite, as passive liable for his predecessor's debt.
Alleged for the defender; He could not be liable, because the writs being apprised before the defunct died, they belonged not to him but to the appriser; and the defender meddled with them only custodiæ causa, without disposing of any of them; and the discharge to the tutors was general, making no mention of papers.
Answered for the pursuer; If apparent heirs were allowed to put their hands amongst the defunt's writs, they might endanger the diligence of creditors, by abstracting and destroying evidents; and it is now a matter of three years since the defunct's decease.
The Lords sustained the said discharge, and continuation of possession of the writs, as a passive title against the defender; although formerly July 8th 1628, Dunbar contra Leslie, No 26. p. 9668.; it was otherwise decided.
Fol. Dic. v. 2. p. 29. Harcarse, (Passive Titles.) No 29. p. 7.
