Behaviour not inferred if the intromission can be ascribed to a singular title.
Inglis v. Elphinston
Date: 1 July 1707 Case No. No 47.
A person had two dispositions of his father's whole estate, the one of heritage, and the other of moveables. He having intromitted with the heirship moveables, which were not expressly conveyed. The Lords found, that this intromission made him liable passive.
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There was a bond due by Elphinston of Quarrol to Bruce of Powfoulis, whereto Alexander Inglis writer in Edinburgh has now right, who pursues this Elphinston of Quarrol upon the passive titles; wherein an act being made, there was a clear probation led, that he had intromitted with his father's whole estate, both heritable and moveable, and entered to the possession immediately upon his death, and had likewise meddled with the charter-cest; which coming this day to be advised, Quarrol alleged his father was but cautioner in this debt for one Nisbet, and that he bruiked the estate by singular titles, viz. a disposition both to the lands and moveables prior to the contracting of this debt, to which he ascribes his intromission and meddling with the charter-chest. Answered, This can never purge his vitious intromission, because, before he opened his father's charter-chest, and meddled with his papers, he ought to have obtained the warrant of a Judge, to have inventoried the same, as the Lords found in the case of Innes of Coxton and Duff of Drummore, No 28. p. 9670. 2do, He has disponed of the visible heirship, which is expressed contained in none of his dispositions, and so he must he still passive liable, especially seeing be possesses 5 or 6,000 merks by year by his father, the debtor in this bond. Replied, Where a son has the whole heritage disponed to him, he needs seek no warrant to open the charter-chest, and intromit with the evidents of the lands disponed, as was decided in the case of Urquhart against Sharp, No 31. p. 9673. And as to the second of the heirship, he had two dispositions, one of the heritage, and another of the executry; and certainly it behoved to be carried and comprehended under one of the two, though not per expressum and nominatim disponed. The Lords waved the first anent the charter-chest, as not so clear, and laid hold upon the second anent the moveable heirship; and found it was a separate subject, and not expressly conveyed, and therefore his intromission therewith made him liable passive. Some doubted if this would hold, where the debt exhausted both the moveable heirship and the rest of the executry; but others thought, even in that case, his intromission was unwarrantable.
Fol. Dic. v. 2. p. 30. Fountainhall, v. 2. p. 376.
