Acts of the Heir proceeding from his Connection with the Predecessor.
Renny v. Balleny
1742.
January—. Case No. No 65.
How far the maxim extends, that proponing a peremptory a defence infers a passive title.
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Ina process upon the passive titles, before the inferior Court, for payment of a bill accepted by initial letters, the defender having denied the passive titles, and also proponed an exception to the validity of the bill as only accepted by initial letters; the Judge sustained process, the pursuer proving that the defunct was in use to subscribe by initials; and upon advising the proof, ‘found, that the defunct was in use to subscribe by initials, and sustained the bill, and found the defender's proponing a peremptory defence was an acknowledgment of the passive titles, and decerned.’
When in a suspension of this decree, the case came before the Lords by petition against the interlocutor of an Ordinary, finding the letters orderly proceeded, the Lords demurred pretty much.
It was on the one hand observed, that it had been of old established, that proponing of payment was an acknowledgment of the passive titles; that it had been long a disputed point, whether or not that was to be extended to the proponing of prescription, and that at last it had prevailed that it should; but as to the question now before the Court, whether it should be extended to the objecting of a nullity, it was new and the rule had never yet been so far extended.
It was on the other hand said, That where no proof was necessary, the defender might safely object a nullity appearing ex facie of the deed; but that no man could, without acknowledging the passive titles, put the other party to a proof.
All however agreed to allow the petition to be seen; and upon advising the the petition with the answers, wherein there was nothing new said, the Lords, without further argument, ‘found that the proponing the said defence was not an acknowledgment of the passive titles, and remitted to the Ordinary to proceed accordingly.’
Fol. Dic. v. 4. p. 43. Kilkerran, (Passive Title.) No 4. p. 368.
