If an apparent heir renounced, a decree cognitionis causa, and adjudication, may be obtained within the year.
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The deceased Alexander Brown being addebted in a sum to Alexander Blair writer, he pursues this Brown, as lawfully charged to enter heir to the said umquhile Alexander, for payment; and the said Brown compearing, and producing a renunciation subscribed by him, whereby he renounced to be heir; whereupon the pursuer obtains decreet cognitionis causa, that he might have execution contra hæreditatem jacentem; and thereupon pursues an action of adjudication; wherein the rest of Alexander Brown's creditors compeared, and alleged, That the pursuer's decreet foresaid, obtained upon the defender's renunciation, was null, because it was obtained before the expiring of year and day after the debtor's decease, against the 76th act, Parl. 6. Ja. 4. and 106th act, Parl. 7. Ja. 5. which prohibits any such process to be granted before year and day be expired; and against the act of session made in anno 1613, which gives liberty to raise charges within the year, but not to intent summons. This allegeance was repelled, and the process and decreet sustained; for, by the party charged his renouncing to be heir, by that voluntary deed he had renounced that benefit and liberty which he had by the acts of Parliament, to deliberate if he would be heir, seeing he resolved to renounce; and that renunciation behoved to be as effectual to the creditor as if he had retoured himself to be heir, quo casu the creditor would ever get process, as is usual, before the expiring of the year.
Clerk, Hay.
Fol. Dic. v. 1. p. 468. Durie, p. 596.
