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.

Pride
v.
Thomson;

and

Stewart
v.
Stewart

Date: 20 November 1630
Case No. No 186.

In a process for payment of a bond due by the defunct, at the instance of the heir of line, who had no benefit by the succession against the heir of provision, the defence was, that the pursuer was vitious intromitter with the goods of the defunct, and so the debt was extinguished confusione. The Lords refused to sustain vitious intromission by way of defence, but sustained compensation to the extent of the pursuer's intromission.

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One Thomson being pursued as heir of provision to her sister, for registration of a bond of L. 500, made by her said umquhile sister to Thomson, her brother, whereto one called Pride was made assignee, and who pursued that registration;—the defender, who was convened as heir of provision to her sister, the debtor, alleging, That the general heir ought to be first called and discussed;—this allegeance was repelled, because the cedent, who was creditor, was that person who would have been general heir, and he compeared and renounced to be heir, albeit he was that person, who, in law, would have been general heir, if he had pleased to serve himself general heir to her, and assisted his assignee in this pursuit; so that the Lords sustained the process against the heir of provision. And it being further alleged, That albeit he renounced to be heir, yet thereby he ought not to be free of this debt, but the pursuit therefore was proper not the less against him, and not against this defender, because he had intromitted with the defunct's goods and gear, whereby he being vitious intromitter, he ought to be liable to the defunct's creditors for their debts, in respect of his vice, and consequently he could pursue none other but himself therefore, whereby the same was confounded;—and the pursuer answering, That albeit a creditor have action in law against the intromitters with the debtor's goods, to make him thereby answerable to pay the debts, yet that ought not to be received by way of exception, to allege the creditor, when he is pursuing for his debt, to be intromitter, there-through to exclude his whole debt, albeit he had intromitted (which is not granted) with a small quantity, which could not satisfy the half of his debt;—the Lords found this allegeance of intromission relevant, only for such quantity as the excipient would condescend upon, and prove was intromitted with by the creditor, to compensate the debt acclaimed pro tanto, and no further; and found, that it could not be received thereby, to make him as a vitious intromitter liable for the whole, if the intromission would not extend to so much, albeit he might be pursued that way by another creditor of the defuncts in solidum for the whole, by way of action, which was found ought not to be received by way of exception. See July 21. 1630, Fairly contra Fairly, No 3. p. 3560.

Act. Gibson. Alt. Dunlop. Clerk, Hay. *** Under the above case Durie has the following note:

Upon the 17th January 1632, Stuart contra Stuart, one of two daughters, only bairns to their father, of two sundry wives, having pursued her elder sister, as charged to enter heir to her father, and upon her renunciation having intended adjudication against her, the process of adjudication and the said decreet were sustained, albeit the eldest sister was only called, seeing the other sister pursuer could not pursue herself, and she renounced to be heir also; which was found upon both their renunciations; this being proponed by another creditor of their father, who was seeking adjudication also against them, in which process the said creditor compeared; and it was found, that her process should go on with this creditor's pari passu.

Fol. Dic. v. 2. p. 44. Durie, p. 540.