[1638] Mor 3560
Subject_1 DISCUSSION.
Subject_2 DIVISION I. Discussion of Heirs.
Subject_3 SECT. I. Who have the benefit of Discussion.
Date: Provost of Stirling
v.
Heir of Livingston
20 November 1638
Case No.No 4.
The heir of entail renouncing, has no interest to plead the benefit of discussion.
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The Provost of Stirling, as assignee to Bruce, having obtained decreet against the heir of line of Livingston, as being lawfully charged to enter heir, in which process the heir of tailzie being also convened, as lawfully charged to enter heir, he renounced to be heir, whereupon he was assoilzied, and the other heir of line was decerned; the pursuer thereupon intents process of adjudication against the heir of tailzie, in respect of his said renunciation, wherein he compearing, alleged that this process of adjudication should not proceed against him as heir of tailzie, while the heir of line be first discussed, according to the order in such cases. The Lords repelled the allegeance, and found the process of adjudication might competently be prosecuted against the heir of tailzie, albeit the heir of line was decerned and not discussed, seeing the heir of tailzie having renounced to be heir, he had no interest to propone this exception, after his renunciation; and the Lords respected not, where the defender alleged that this defence was in jure, and although no party should propone it, yet it was in law inherent in the nature of such processes, to discuss the heir of line first; and the Judge ought to find so, by the consuetude and practique of the realm, although it were not alleged; and albeit the heir of tailzie had renounced,
yet it has ever that inherent with it, that suo ordine ilk heir should be sought, and discust in his own room, by a priority and posteriority, as use is, which was repelled. Act. ——. Alt. Nairn.
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