Intromitting with the Predecessor's Writs and Evidents.
Diggles and his Factor v. Stewarts
Date: 15 June 1706 Case No. No 34.
An apparent heiress and her husband, mean persons, having received from the defunct's man of business, the writs and evidents of his real estate, upon inventory, for which they granted receipt; the Lords, in this case of poor ignorant people, who made no use of these papers, assoilzied from the passive title.
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Thomas Stewart, merchant in Newcastle, being debtor to John Diggles, merchant in Manchester, in L. 80 Sterling, by bond, the said Diggles, and Andrew Dennet, his factor, pursue Janet Stewart, sister and apparent heir to the said Thomas, and John Stewart her husband, for payment on the passive titles; and insisted on this ground, that she and her husband had granted a receipt to John Knox writer, of her brother's writs and evidents, and, particularly, of an heritable subject belonging to him, by adjudication from one Jamieson, his debtor, and had paid Knox an account to get them up, and make themselves masters of his papers; and the husband having signed the receipt, must be liable as well as the wife. Alleged, 1mo, Absolvitor, quoad the husband; because the passive title of gestio pro hærede can reach none but those who are nearest heirs et alioqui successuri; whereas he, though the apparent heir's husband, is himself a stranger to the debtor; 2do, As to the wife, esto she did represent, yet being vestita viro, she can be liable only in the event of the dissolution of the marriage; but, 3tio, She can never be liable for taking up these papers; for though intromission with rents of lands, and other moveable goods, and the defunct's charter-Chest per aversionem, without warrant or making inventory, infer a passive title of behaviour; yet she is not in that case, for here she receives only papers up from her brother's writer upon inventory, mentioning every individual writ, and never made use of them; and so there can be no fraudulent design, nor prejudice to the creditors, seeing she is ready to make them forthcoming for their behoof; and being poor rustics, their simplicity is sufficient to exoner them from such an odious passive title as vitious intromission, seeing they have done a favour and benefit to the creditors, by preserving the papers, and so there was no animus immiscendi universaliter, but only for custody and conservation. It is true, intromitting with the defunct's goods, without a title, is what the law calls crimen expilatæ hæreditatis, and looks like stealing from the dead; but the taking up a few papers can admit of no such construction; and the Lords, on the 28th June 1670, Ellis against Kerse, No 27. p. 9668. found the receipt of a charter-chest, by an apparent heir, without inventory, inferred this passive title; ergo a contrario sensu, the taking up of a few papers, upon inventory, can never import it. And the reason of this passive title, for fear of embezzling and abstracting the writs, cannot take place here, because they were received by inventory, and are now offered re integra to the creditors. Answered, If this be not sufficient as a passive title, it Will open a door to apparent heirs to intromit with their predecessors writs, and defraud their creditors, and yet not be liable; whereas all such intromission, without authority or warrant of a Judge, is vitious and clandestine; and was so found since the Revolution, in the case of Murray and Drummond against the Laird of Blair, No 32. p. 9675.; and before it, betwixt Innes of Coxtown and Duff of Drummore in 1682, No 28. p. 9670. And the Lords demurred on it in the case of Urquhart of Knockhill and Sir William Sharp, No 31. p. 9673. And the producing the papers now non relevat to assoilzie; no more than if one who had intromitted with his predecessor's rents should offer to restore them; and the reason of law is clear, for the apparent heir has year and day to deliberate, and if he apprehend danger, he may abstain; but if he will put to his hand and meddle, it is just he should be liable, he having so easy a remedy to forbear, and will not; especially seeing they paid money for getting them up; and the defunct's order for delivering them makes against them, for that is as much as if he had disponed the adjudication to them; in which case, she would have been liable per præceptionem hæreditatis. It is true, in 1628, No 26. p. 9668. one was assoilzied, though he had intromitted with his father's evidents; but there the specialty was, that it was done in his minority.—The Lords, by a plurality of five or six against four, found, in this circumstantiate case of poor ignorant people granting a receipt of papers upon inventory, without qualifying any use they had made of them, that it was not a passive title.
Fol. Dic. v. 2. p. 28. Fountainhall, v. 2. p. 334.
