Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Count and Reckoning at the instance of an apparent heir
Date: 14 June 1671
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An apparent heir having intented a summons of exhibition ad deliberandum, as also a declarator of the extinction of an apprising, led many years ago, by intromission with the mails and duties within the years of the legal, which last would resolve in a count and reckoning, it was alleged,—That such an action could never be sustained at an apparent heir's instance, and that it was altogether a novelty. Answered,—That whatever was the reason for sustaining exhibitions ad deliberandum at the apparent heir's instance, the same very reason militated here for the sustaining this action of count and reckoning, because non constat nisi ex eventu litis num hæreditas erit damnosa necne; and for the objecting it is a novelty, that is altogether false, seeing Durie has some practiques of it either the very same or very contingent. See Dury, 16th March, 1637, Home against Blackader; 25th February, 1637, Hepburn. Vide contrarium 16th March, 1637, Edmondstone; item 11th February, 1635, Muire.
The Lords ordained the practiques to be produced, and inclined exceedingly to sustain the summons.
