Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATION contra hæreditatem jacentem.
- v. Scot
Date: 20 December 1626 Case No. No 1.
A creditor was allowed adjudication cognitionis causa, upon an apparent heir's renunciation, altho' another creditor offered to prove, that the apparent heir had behaved as heir.
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In an action, at the instance of, creditor to umquhile Scot of Bony-town, against one Scot; as lawfully charged to enter heir to the defunct, for registration of a bond; the defender compearing, and offering to renounce to be heir; whereupon, the pursuer desired sentence to be given against him, cognitionis causa, to the effect he might seek adjudication, as use is, in such cases: Compeared in this process, another creditor of the said Scot of Bonytown; and alleged, that this sentence, upon the defender's renunciation to be heir, could not proceed in the pursuer's favours; thereby to seek adjudication of the defunct's lands in his prejudice; seeing he offered to prove, that the defender had behaved himself as heir to the defunct, by intromitting with his father's lands and goods; and so could not renounce to be heir to him. This allegance was repelled, seeing when this creditor should pursue this defender for his debt, he might insist against him, or qualify him to be heir; as he might best do of the law, which could be no hindrance to this pursuer, to prosecute all lawful diligence competent to him of the law, upon the defender's renunciation to be heir; for this diligence of pursuit, moved by the pursuer, qui sibi vigilavit, could not be stayed by this allegance of this creditor, who had not provided himself, so as to seek and use the like diligence for recovering of his debt.
This decision was followed January 22. 1629; Mr Frederick Carmichael against the Laird of Kincraig and his creditors, in this same manner as is here marked.
Act.Alt. Burnet.Clerk, Gibson.
Fol. Dic. v. 1. p. 3. Durie p. 249.
