Scottish Court of Session Decisions

Subject_1 PASSIVE TITLE.
Subject_2 DIVISION IV.

Vitious Intromission.
Subject_3 SECT. I.

In which circumstances intromission does or does not infer a Passive Title. - Action transmits against heirs in valorem only.

Patrick Archibald, Merchant in Leith,
v.
George Lawson, late Treasurer of Edinburgh

Date: 29 June 1705
Case No. No 152.

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In the action at the instance of Patrick Archibald against George Lawson, the Lords found the transporting of a person's chests or trunks after his death, from the place where he died to the defender's house, relevant to infer vitious intromission against him; and that the inventorying and rouping of the goods by virtue of a posterior warrant from a magistrate, (though before commencing of the pursuer's process) did not purge the vitiosity; albeit a subsequent confirmation, prior to the citation at the pursuer's instance, would have purged the former intromission.

Fol. Dic. v. 2. p. 41. Forbes, p. 19. *** Fountainhall reports this case:

The deceased Bailie Lawson, being debtor to the said Patrick Archibald in L. 250 Scots, he pursues George, his nephew, for payment, on the passive title of vitious intromitter, in so far as the defunct having lodged in one Jaffray's house, he left sundry trunks, household furniture, and goods in that chamber, which George caused transport after his death to his own house, without any disposition or other right thereto. Alleged, That the defunct was so poor, that he had no goods, at least they were of so mean a value, that they would not defray the expense of his funerals, and he neither sold nor disposed upon any of them, and so cannot be properly called an intromitter; and within two or three days after his death, he applied to a Bailie, and procured a warrant to inventory and roup them, which was accordingly done; and afterwards he confirmed himself executor creditor, which was more than sufficient to purge and elide the odious passive title of vitious intromitter; seeing quilibet titulus coloratus excusat a vitio; and if he did transport them before he had a title, it was only custodiæ causa, and for preservation from embezzlements; so the most that can be inferred against him is only for single restitution, or to be liable in the price of the goods sold; but not to import an universal passive title. Answered, If the nearest of kin, or others be allowed to put their hands summarily, and be assoilzied on procuring warrants ex post facto, there shall never be an intrommitter overtaken; but the moveables of debtors shall be abstracted and concealed; and our law knows no way to secure this, but a legal confirmation, and till that was gone about, his method was to have got them sealed up and sequestrated, as is prescribed by the act of sederunt 23d February 1692, concerning the inventorying the writs and goods of defuncts; whereby it appears his meddling and transportation of the goods at his own hand was most unwarrantable; and his posterior inventorying by order of a Bailie, and then confirming, can never purge, because the Bailie's warrant was not the habile way, and the confirmation was posterior to the raising and executing of the pursuer's summons against him; and if these were once sustained, there would be variety of devices and contrivances invented, to defraud just creditors. The Lords found the subsequent warrant nor confirmation did not purge the antecedent intromission, nor liberate him from vitious intromission; but in regard it was alleged for the defender, that any goods he transported were in his uncle's lifetime, and not after his death, the Lords thought this, if true, altered the case; and allowed them a conjunct probation as to the time.

Fountainhall, v. 2. p. 279.