The apparent heir found liable, because he had lain in the defunct's bed, drank in his mazer cup, and worn his silk hose, &c.
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Cleghorn, as assignee to a bond of L. 100 made to Katharine Scowler by umquhile James Fairlie, pursues the daughter of the elder brother of the said umquhile James Fairlie, as heir of conquest, and————Maxwell her spouse for his interest, and William Fairlie younger brother, to the said umquhile James, as heir of line, for registration of the said bond; and the younger brother heir of line, offering to renounce, the heir of conquest alleging that he could not be heard to renounce, because he had intromitted with the heirship goods of the defunct, standing in the house where he died, and remained still in possession of the house, and had lain in his bed and bed-cloaths which were standing in the said house; likeas, he meddled with a macer which was in the defunct's possession, and drank therein and used it at his pleasure, and did wear his green silk shanks; this allegeance was sustained to make him heir, and that he could not renounce, albeit he alleged that such intromission was no intromission which could burden him, the bed and macer being yet undisponed upon by him, and that the same pertained not to the defunct, but pertained to their mother, who gave her umquhile son the use thereof; and after his decease she meddled with the same, her said umquhile son remaining in a chamber within that same turnpike where the mother dwelt, pertaining to her, and where he was entertained and supplied by her; likeas her name was engraved upon the macer and she intromitted with the same; notwithstanding all which, the allegeance was sustained to make him heir, specially seeing that he dwelling in an house of his own when the brother died, he, after his decease, left his own house and entered and dwelt in that house where his brother died, which was sustained, albeit he alleged that it was done by his mother's warrant to whom that house where his brother died pertained, and where she received him; but it was alleged, that this heir of line, after his brother's decease, locked the door of the house and kept the keys thereof, and suffered none to enter while he entered himself.
Act. Cunninghame.Alt. Herriot.Clerk, Scot.
Fol. Dic. v. 2. p. 27. Durie, p. 481.
