Scottish Court of Session Decisions

Subject_1 PASSIVE TITLE.
Subject_2 DIVISION I.

Behaviour as Heir.
Subject_3 SECT. IV.

Intromitting with the Predecessor's Writs and Evidents.

Mr John Chalmers
v.
Sir William Sharp

Date: 25 January 1709
Case No. No 35.

Accepting of a key, and taking papers particularly assigned, found not to infer behaviour.

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Mr John Chalmers, writer, having right to a bond of Sir William Sharp's of Stonnyhill, pursues Sir William Sharp of Scotscraig, his nephew, and apparent heir, on the passive titles, and refers them to his oath; and he having deponed, it was contended, That he had acknowledged as much as inferred a gestio pro hænde, in so far as he owned, that, being at London the time of his uncle's death in 1686, on his return, Sir James Cockburn gave him the key of a room which the defunct had desired him to deliver to him, and that he had gone in several times, both alone and in company, and viewed the papers there contained; which searching and intromission was sufficient to infer behaviour as heir. Alleged, His uncle having disponed to him several particular funds and subjects, he had all the reason in the world to try for the grounds of the debts to which he was assigned, without which his right would have been ineffectual; and his oath being the sole mean of probation, he has denied intromission with any other writs whatsoever, except those especially disponed to him. And that which both the Roman law and ours pitch on as the great characteristic of behaviour, being the animus adeundi et abstrahendi, there is no pretence for this fancy here, seeing it is plainly ascribeable to his singular right and title of a special assignation from his uncle; which being titulus probabilis et coloratus, is more than sufficient to assoilzie from an odious and unfavourable passive title; and thus a tolerance from a donatar of escheat or recognition has been sustained to assoilzie the apparent heir's intromission, in July 1665, and July 1666, and January 1667.* Answered for Chalmers, That the laws of no nation had more strictly provided against the frauds and embezzlements of apparent heirs than ours, and it was pessimi exempli to allow them access to charter-chests, and ransack their predecessors papers summarily at their own hand, when law had provided an easy remedy, by applying to a Judge, and entering by his warrant and authority, and inventorying the writs; which method he having neglected, pessimum is to be presumed against him, that he has abstracted the writs; and creditors must not be put to impossible expiscations of the particulars, where he had a promiscuous intromission per universitatem. And thus have our wise

* See Appendix.

predecessors decided, as far back as the practiques go, as appears from Haddington, 8th March 1610, Baillie against Home, No 13. p. 9658; Durie, 15th January 1630, Cleghorn against Fairly, No 21. p. 9664; and Stair, 28th June 1670, Ellies against Carse, No 27. p. 9668.; and Innes against Duff, No 28. p. 9670; and since the Revolution, in the Laird of Blair's case, No 32. p. 9675. the Lords expressly found them liable, if they did not apply to a Judge, and get them inventoried. And the accurate French Lawyer, in his Traite des Loix Civiles in handling heirs making inventories, lays this down as a rule, that if a son immix without getting the papers sealed or inventoried, he renders himself purely and simply heir; and that eminent English Civilian Swineburn affirms, an executor omitting to make inventory is even bound to legatars, and so much more to creditors. The Lords, by plurality, found his accepting the key, and taking the papers to which he was specially assigned, did not infer the passive title of behaviour. But all were generally convinced, that it was of a dangerous consequence to allow such intromissions; and, therefore, deserved amendment and regulation, by an act of sederunt, pro futuro.

Fol. Dic. v. 2. p. 29. Fountainhall, v. 2. p. 483.