An apparent heir proponing improbation against a bond, for payment of which he was pursued; it was found, that it could not be received hoc loco, the writ being registered, but action of improbation was reserved. This is the import of this case, and the two following compared together.
Click here to view a pdf copy of this documet : PDF Copy
In a pursuit by one Annand, as executor to his father, for payment of a sum against the defender, as lawfully charged to enter heir to his father, debtor of the sum, conform to his bond; the defender offering to renounce where he was convened as lawfully charged, &c.; and, 2do, alleging, under protestation, that he past not from his exception, and offer to renounce to be heir; that he offered to prove, by this pursuer's own oath, that the bond was blank in the sum all the time of the lifetime of the creditor, and was so found by this pursuer after his decease, and was since filled up by himself; and the pursuer contending, That he cannot be heard both to propone this exception and also to renounce; The Lords found, that if the defender would offer to renounce to be heir, he could not be heard to propone any other exception to elide the pursuit; and if he would propone any exceptions for eliding thereof, that co casu he could never be heard, neither at that same time, nor in that process, nor in no time thereafter to renounce; and so they permitted to his option to elect any of the two; but found, that he could not propone and use both; for, if he succumbed in proving of the exception, or any other peremptory exception, which might elide the cause, he could not use the renunciation, having succumbed; albeit the renunciation was proponed at that time when the peremptor was proponed, which I think singular.
Act. Baird.Alt. Gilmore.Clerk, Gibson.
Fol. Dic. v. 1. p. 173. Durie, p. 653.
