In which circumstances intromission does or does not infer a Passive Title. - Action transmits against heirs in valorem only.
Adamson v. The Laird of Freeland
Date: 12 January 1630 Case No. No 147.
In libelling vitious intromission, the pursuer need not condescend on particulars.
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If one be convened as intromitter with a defunct's goods, the pursuer must condescend upon the particular intromission, to the end that the defender may purge it if he can; but if he be convened as universal intromitter, there needs no condescendence be made by the pursuer. The defender may if he please allege, that any intromission he had was of such and such particular goods, which he purgeth: And if the pursuer will allege any further intromission, let him condescend and he shall answer.
Nota.—That, after the particulars intromitted with by the defender, given in ticket, the pursuer may condescend in general only, that he offers to prove, that by and attour the particulars given in ticket, the defender intromitted with diverse other things, ex. gr. with more kine, horse, corns, &c. providing he be particular in the species, although not in individuis.—January 14. 1630.
Fol. Dic. v. 2. p. 46. Spottiswood, (Universal Intromitter.) p. 352.*** Durie reports this case:
1630. January 12.—The relict pursuing the heir of her father-in-law, to employ 2000 merks to her in liferent, whereto he was obliged by her contract of marriage; and the heir alleging payment made to her umquhile husband of that sum, conform to his discharge; and the pursuer replying, That that discharge not being subscribed by her, could not prejudge her; and the defender duplying, That she was universal intromissatrix with her umquhile husband's goods, and so should warrant the discharge; and the pursuer alleging, That the defender should condescend upon the particulars of her intromission, which being declared, she should purge the same; and the other alleging no necessity to be special, seeing he alleged that she was universal intromissatrix, and which was relevant in law against her, without condescending, and if she would purge her intromission with any particulars, it was her own part to be special thereon, and he should answer thereto;——the Lords found, That the defender alleging the pursuer to be universal intromissatrix, needed not to be special, and could not be compelled to condescend upon the particulars of her intromission; but if she would purge her intromission, she ought to do the same, and be special thereon, as she best might, being her own deed.
Act. Stuart.Alt. Aiton.Clerk, Hay.
And in this same cause, upon the 13th January 1630, the relict producing a ticket of the particulars of her necessary intromission, and the party offering to prove further intromission, whereon the relict alleged that the party ought to condescend in special, that she might elide the same; the Lords found, That the party replying that the relict was further intromissatrix with the defunct's goods, viz. corns, cattle, and all others his goods, besides the particulars which were purged as necessary; and that she was universal intromissatrix, therefore that he needed not further to be more special; for if she would purge any more intromission had by her, she ought to give the same up herself; but where the party alleged that she was universal intromissatrix, besides the particulars which she purged, he needed not be more special; but the Lords declared, That they would consider after probation was renounced, at the advising of the cause, if as much should be proved as would make her liable as universal intromissatrix.
