Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

The Marquis of Tweeddale
v.
Captain Dury of Craigluscar

Date: 13 July 1697

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The Marquis of Tweeddale pursues Captain Dury of Craigluscar, (who held his lands and teinds of the Lordship of Dunfermling,) for payment of the feu and teind duties of his lands for many years bygone, both in his father's and his own time. During his own possession he did not reclaim; but, quoad the years in his predecessor's time, he (denying the passive titles,) offered to prove payment. The Act being thus extracted, the Marquis contended he was exonered from proving the passive titles, because the defender had proposed a peremptory exception of payment.

Answered,—His confessing or denying the passive titles could import nothing quoad the feu duties; because, being debitum fundi, he was liable however; but the proponing it quoad the teind, must be interpreted habili modo only of the years of his own possession, so as it may consist with his denying the passive titles: And there could be no more meant by his allegeance of payment; and, where a thing is dubious, it were a strange inversion of law to detort it to make me universally and passive liable; seeing gestio pro hœrede requires a clear intention of the apparent heir, signified by some ouvert act, se velle adire hœreditatem, l. 20. D. de Acquir. et Omit. Hœredit. And, with us, every declaration will not infer a passive title; such as the designing himself heir, at least apparent heir, in a writ,—Dury, 24th January 1627, Glenkindy against Crawfurd; 8th July 1628, Dunbar against Lesly; nor yet the having the evidents, nor the paying of some debts: Neither does the probation in a decreet upon the passive titles prove extra ilium processum, in another process,—Dury, 20th November 1629; 20th July 1626, Harvey against Baron: and, 21st January I675, Telfer against Corsan, the proponing payment was not found a passive title, but only to exeme the pursuer from proving that point and article of the libel for which payment was proponed.

The Lords found Craigluscar's advocate's unwary proponing of payment indefinitely, without distinguishing whether for the years or his own or his father's possession, could not infer an acknowledgment of the passive titles, which, in another part of the act, he expressly denied.

Vol. I. Page 784.