Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Anent Vitious Intromission
1677.
June.
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I. If a stranger shall meddle and intromit with the moveable heirship, it will bind no passive title on him, as the intromission with the moveable goods would do; because heirship is of the nature of heritage, in which no passive titles quadrate against any but those who are alioqui successuri. But the stranger's intromission will bind him to simple restitution, and infer vitious intromission, hut no passive title.
Advocates' MS. No. 574, § 7, folio 286.
II. One is convened as vitious intromitter with the goods and gear of such a man, and it is libelled, that that man vitiously intromited with the goods and gear of another person, whom they instruct to have been their debtor by bond or decreet. The Lords will not allow the probation of this progress, or to prove, after a man's decease, that he intromitted without a title; because if he had been convened in his own lifetime, and questioned, he might have purged the intromission, and ascribed it to some title, which none else now knows; besides this passive title of vitious intromission sapit naturam delicti, it is penal; morle extinguitur, nec transit in hæredes, nisi ejus dolo lucrum ad eum perventum sit, vel lis cum defuncto contestafue-rit; by which perpetuatur actio. And this the Lords decided justly in the case of Wilkieson, in 1666. See it in Stair's System, tit. 31, Of Vitious Intromission, num. ult. and my Annotations on it there.
