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Scot of Hartwood-mires gave in a bill of suspension of a decreet in foro, which the Ordinary reported to the Lords. The reason of suspension was, that he being convened, as representing his father, to pay the debt in question, for which his father was cautioner, he offered to prove payment, denying always the passive titles; and having proved the most part paid, by discharges granted to the principal debtor, he was decerned for the rest; and now offers to renounce to be heir to his father, conform to his protestation in the first act. It was answered, That the defence of payment does never suffer the proponer to deny the passive titles, or put the pursuer to a necessity to prove them, by the constant custom, founded upon good reason; because the proponing upon any positive right of the defunct's is a behaviour as heir, and in the act of litiscontestation, a term is only assigned to the defender to prove payment, and the protestation in effect is rejected, because there is no term therein assigned to the pursuer to prove the passive titles, in case the defender failed to prove payment, neither could there be any by our custom.
The Lords refused the suspension; and found, that the offer to prove payment liberated the pursuer from proving the passive titles.
