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Duff of Bracco v Innes of Auchluncart. [1686] Mor 10342 (00 March 1686)
URL: http://www.bailii.org/scot/cases/ScotCS/1686/Mor2510342-024.html Cite as:
[1686] Mor 10342
Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. II.
What Right go against Heirs.
Duff of Bracco v. Innes of Auchluncart
1686.
March. Case No. No 24.
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The heir of one who was successor titulo lucrativo, was found as universally liable for the first defunct's debt, as his immediate predecessor would have been; although an heir to a vitious intromitter is only liable in quantum lucratus; because vitious intromission being penal, is not so rigorously extended against the intromitter's representatives, as the passive title of universal successor, which is not a vitious title, but præceptio hæreditatis.
Fol. Dic. v. 2. p. 73. Harcarse, (Aires Gestio, &c.) No 65. p. 12.*** Sir P. Home reports this case:
1686. February.—In an action at the instance of Duff of Bracco against Innes of Auchluncart, for payment of a sum, as representing his father, who did represent his grandfather, the Lords found it relevant to be proven by witnesses, that the defender's father did intromit with the moveable heirship, and mails and duties of the lands belonging to Walter Innes, the defender's grandfather, the pursuer's debtor; as also, that the defender's father did accept from the said debtor, to whom he was apparent heir, and when he was in familia, of a disposition to the lands of Balvenny, formerly disposed to the pursuer's debtor by Balvenny, for relief of his cautionry for the said Balvenny, and did make use thereof after the grandfather the pursuer's debtor's decease, by intromission with the mails and duties thereof, or by disponing, or obliging himself to dispone the same, or consenting to disposition or alienation of the saids land.
Sir P. Home, MS. v. 2. No 783.
*** A similar decision was pronounced, Henderson against Wilson, 17th January 1717, No 118. p. 9784. Passive Title.
