Scottish Court of Session Decisions

Subject_1 PERSONAL and TRANSMISSIBLE.
Subject_2 SECT. II.

What Right go against Heirs.

Cranston
v.
Wilkison

Date: 14 July 1666
Case No. No 21.

Vitious intromission not sustained after the intromitter's death, against his representatives, to render them liable universally.

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Betwixt Cranston and Wilkison it was found, That a person being convened as representing his father, who was alleged to be vitious intromitter to the pursuer's debtor, the title being passive and penal, could not be a ground of action against the defender, to make him liable for the whole debt; but only in so far as should be proved the defunct did intromit, and was locupletior, quia actio pænalis non transit in hæredem; and the defunct, if he had been pursued in his own life, might have purged the said title.

Reporter, Newbyth. Fol. Dic. v. 2. p. 74. Dirleton, No 16. p. 9. *** Stair reports this case:

In a pursuit betwixt Cranston and Wilkison, the defender being convened as heir to his father, who was vitious intromitter with the pursuer's debtor's goods and gear;

The Lords having, of their own proper motion, taken this passive title to consideration, as to this point, whether vitious intromission, as it is an universal passive title, died with the intromitter, or if it might be pursued against his representatives, they ordained the parties to be heard thereupon; which being reported this day, the Lords found, that no person, as representing a defunct, could be liable universaliter upon that defunct's vitious intromission, but only for the true value of his intromission, and that either by action or exception; upon this consideration, that albeit such titles have been oft-times libelled, and sometimes sentence thereupon, when none opposed, yet there had never been a decision nor interlocutor for it; and that the passive title being pænal, sapiens naturam delicti, non transit in hæredes delinquentis in quantum penale; for they thought it were of dangerous consequence, if persons might be liable, not only to their immediate predecessor, but to their goodsire, grandsire, or foregrandsire's vitious intromission; but, if the vitious intromission had been established against the defunct in his own time, it would be sufficient against all his successors; otherways, after his death, they could not be put to purge the vitiosity, or to shew the manner or the warrant of his possession. But it was not determined, if action had. been intented against the defunct, and he died before sentence, whether his heir would be liable, there being different cases as to that point, which required different considerations, as if the defunct died after probation, or if after litiscontestation, when at least the particulars were condescended on, and the defunct compearing, alleged nothing to purge; or if the pursuit were de recenti, and not long delayed, but the defunct died, the pursuer doing all diligence; or if diligence were not used, but the matter lay over; in which case, it seems little respect could be had to the intenting the action only; and it would be as little questionable, that, if probation were led, the defunct compearing, it would be as valid against him as if sentence were obtained; the middle cases are more dark, but none of them were comprehended in this decision.

Stair, v. 1. p. 391.