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An apparent heir being convened upon his passive title, that, by a letter to the defunct's debtor, he desired him to pay what he owed the defunct, to one of his, the defunct's creditors, and obliged himself to warrant the payment; because an apparent heir's uplifting heritable debts to pay the defunct's debt, is a behaviour; and any body's uplifting of moveable debts for such an end, is vitious intromission; and the appointing of a debtor to apply the payment such a way, is equivalent to the so uplifting and applying;
Answered for the defender; Intromission only with something in the defunct's possession at his death, doth infer a passive title, which cannot be charged upon the defender, who did not intromit with or give up the debtor's bond, or discharge the debt, but only interposed with him to satisfy such a creditor, by obliging himself to warrant secure the debtor; so that the money paid was not properly the defunct's, seeing the debtor's remained after the payment.
The Lords assoilzied from the passive title.
Fol. Dic. v. 2. p. 32. Harcarse, (Heirs Gestio and Passive Titles.) No 38. p. 9.
