Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Nasmyth and Forrest v. Alexander Hamilton of Dalzell
Date: 25 June 1672
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Thirtwo persons convening the laird of Dalzell as heir to his father, for making payment to them of L.32 which they paid for his father in 1653, when they were tenants of the lands of Allantonhauch, the same being exacted from them for the cess due forth of these lands: it was Alleged,That the defender was noways liable in that debt, because he had an elder brother, viz. Robert Hamilton of Monkland, who was heir general or heir of line to his father, and so behoved both to be convened and discussed before any heir of conquest, provision, or of the second marriage, such as this defender is.
To which it was Replied,—That though regulariter, the heir of line must be first discussed, yet there was no necessity of using that order of discussing here, because this defender succeeding as heir to the very lands wherefore this cess was paid, and upon account whereof this debt was contracted, and it being exacted then from the tenants as debitum fundi, it were but just they should have the same privilege in the repetition whereof, and be put to know none save the possessor of the land, especially he succeeding thereto as heir.
My Lord Craigie refused to sustain process against this defender, till the heir of line were first discussed, notwithstanding of all the specialities in the case; and called to mind, that in an action betwixt the Duke of Lennox and his sister, the Lords ordained the heir of line to be first discussed: albeit it was alleged, that the debt acclaimed was contracted upon the account of those lands to which the heir of provision (whom they were insisting against) had succeeded.
