Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PASSIVE TITLE.
Subject_3 Intromission to a trifling extent, and without fraud, found not to infer a Passive Title.

James Wilson
v.
Robert Armour and Janet Smith

Date: 7 July 1772

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[Faculty Collection, VI. 21; Dictionary, 9,833.]

Kennet. It is impossible that the defender could be liable gestione pro hærede, because he was not heir, and because he intromitted with the writings at the desire of the pursuer. The passive title of intromission is not proved, because the intromission was very trifling.

Monboddo. A general intromission, or with the animus of being heir, is sufficient to constitute the passive title. Such was the Roman law, and such our law in Durie's time. That law has been revived by a late decision in the case of Milmine.

Kaimes. In disorderly times men were apt to lay to hands; there was a necessity of strictness. Now, in more civilized times, there is no occasion for such strictness, unless when there is evidence of fraud or of intentional concealment.

Gardenston. We ought not to think ourselves wiser than our predecessors: we ought not to change the law. I would wish to know what is vicious intromission if this is not?

Coalston. According to the opinion of Lord Stair, vicious intromission only takes place where the intromission is universal. It is clear, from the authorities of lawyers, that, to constitute this passive title, something like a general intromission, or appearance of fraud, must be shown.

President. I know not what I would have done had I been a judge a hundred years ago; but I have no doubt now.

On the 19th June, and 7th July, 1772, the Lords assoilyied; adhering to Lord Auchinleck's interlocutor.

Act. J. Boswell. Alt. W. Wallace.

[N.B.—From page 17 of Mr Boswell's second petition Dr Samuel Johnson dictates.]