There is no necessity for a general charge to enter heir, in a process for the avail of marriage pursued against the ground.
A charge is necessary only where it is meant to make the heir personally liable.
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The gift of ward and marriage being gifted and pursued for, by a donatar against —— Dickson, apparent of Headrig, apparent heir to that prior first apparent heir of that umquhile deceased vassal, who died tenant to the King; for the action was not pursued against the apparent heir of the vassal, in his own lifetime; but the apparent heir, whose marriage was gifted, being deceased before any action was intented against him upon that gift, the action was intented against his brother, who was the next apparent heir upon that gift; for that first apparent heir's marriage, who was deceased, and whose marriage was gifted before he died, and not for the marriage of the defender, who was then apparent heir himself, in respect of the other's decease; and after the intenting of this pursuit, this other apparent heir, who was defender, being deceased since the intenting of the cause, and the process being transferred in the next apparent heir, and after transferring being insisted upon against him, not for his own marriage, but for the marriage of the first apparent heir, as said is; in this process, it being alleged, That the same could not be sustained against the apparent heir, either of the vassal, or of that apparent heir whose marriage was sought, except the defender were called, either as heir entered to that apparent heir, or as charged to enter heir to him; for he alleged, That this action ought to be considered otherwise than if the vassal's apparent heir were pursued for his own marriage, in which case he being the apparent heir who was convened, it sufficeth; but in this case, the apparent heir's marriage being craved after his decease, some ought to be called to represent him; seeing it was craved as a debt of his, the pursuit whereof cannot be sustained, as when the apparent heir to the vassal deceased is convened for his own marriage; for in that case, he cannot be otherwise convened, seeing if he had been entered or infeft before the other vassal's decease, his marriage would not have fallen; but now the apparant heir being dead unentered, and yet his marriage craved, the process cannot be sustained therefor against none, but some called to represent him, either as heir, or charged to enter heir; seeing the defender, who is convened as apparent heir, his own marriage is not craved, but the marriage of the other apparent heir deceased.—The Lords repelled this allegeance, and sustained the transferring, and process pursued thereupon, against the said apparent heir, without necessity that he should be either heir, or charged to enter heir to that apparent heir, whose marriage was sought; in respect that this pursuit was real against the ground, and that the pursuer sought no personal action, nor execution thereupon against the defender, but past therefrom. See Personal and Real.
Act. Advocatus & Craig.Alt. Nicolson & Heriot.Clerk, Gibson.
Fol. Dic. v. 1. p. 130. Durie, p. 778.
