Reductions, declarators, and other real actions, which have no personal conclusion against the heir, require no general charge to enter heir
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Mr David Dewar pursues a transference of a count and reckoning which formerly was depending betwixt him and umquhile Henry Paterson, and craves it may be transferred against Henry the heir, and proceed where it left.—It was alleged for the defender, absolvitor, because the citation was given before year and day, after the defunct's death, contrary to the defender's privilege of his annus deliberandi, by which he hath inducias legales, and cannot be forced to own or repudiate the heritage.—The pursuer answered, first, That annus deliberandi is only competent, where the apparent heir is charged to enter heir, and so must either enter or renounce, and so has no place in reductions or actions declaratory, or real actions, which may proceed against the apparent heir without a charge.—The defender answered, That albeit the annus deliberandi be most ordinary in such cases, yet it is not limited thereto, but must take place also in all cases where the reason of the law holds, viz. where the defender must be either absent, and suffer sentence, or if he compear, must found himself upon the defunct's right, and so behave himself as heir, as in this case the defender cannot allege articles of deduction or discharge, but upon the defunct's right; for finding out of which right, the law giveth him a year to enquire and use exhibitions, ad deliberandum ne incidat in damnosam hæreditatem; and therefore during that year he cannot be prest contestare litem.
The Lords sustained the defence.
It was further alleged by the pursuer, that now the annus deliberandi was past.—It was duplied for the defender, That albeit it was now past, the citation was used within the year, so that that citation cannot be sustained.
The Lords refused to sustain the citation, and found no process till a new citation; but here the day of compearance filled, in the summons was also within the year; which, if it had been after the year, it is likely the summons would have been sustained, especially seeing the decision of this case extending the year of deliberation to declaratory actions, in custom had not occurred, nor been decided. See Induciæ Legales.
