In a process upon the passive titles, an heir founding his defence on partial payments by the predecessors, was not afterward allowed to deny the passive titles.
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Mersington reported the Earl of Tweeddale, Chancellor, contra Dury of Craiglascar. The question was, he being a vassal of the regality of Dunfermline, if he was liable in the Sheriff fiars, as the price of his teinds, or in the regality fiars, which are much dearer? The Chancellor founded on a decreet he had obtained against Fotheringham of Halhill.—Answered, This vassal Craiglascar is in another case, because he has a decreet of the commission for plantations, finding him only liable in the Exchequer prices.—Alleged, This was before Dunfermline got the tack.—The Lords resolved to hear this farther.
The Lords found, in the process at the instance of the Marquis of Tweeddale against Dury of Craiglascar, that one having denied the passive titles, and yet afterwards producing discharges of the teind-duties granted to his father during the time of his possession of the lands, his founding thereon was a sufficient acknowledgment of the passive titles; for an apparent heir has no interest to propone payment by his predecessor whom he may represent; but he may found on payment made to singular successors who were his authors in the land, or he may propone falsehood of any writ alleged signed by any of his predecessors; for that only denies they granted any such paper.
Fol. Dic. v. 2. p. 187. Fountainhall, v. 1. p. 661. & 767.
*** The like was found, where the partial payment was proponed in a declarator of extinction;—see Appendix, July 1729, Johnston against Logan.
