Creditors of the Laird of Craig v. The Heritors of the Lands
Date: 21 June 1672 Case No. No 41.
In a reduction, calling for rights made to the defender, or his author, process was not sustain ed, till the heirs of line of that author were called.
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In a reduction at the instance of some Creditors of the Laird of Craig, for reduction of a disposition granted by the Laird of Craig and Earl of Dundee. It was alleged no process, because there was none called representing Dundee, whose heirs would be liable in warrandice, and especially the Lord Haltoun was not called, who is ultimus hæres to Dundee, neither the heir of line; for though his estate being tailzied to heirs male, there is none that could serve heir to him, yet there are persons near of blood, that are heirs of line.
The Lords found, that the heir of line behoved to be called, but found no necessity to call any heir of tailzie, or provision, or the donatar by the King as ultimus hæres; albeit these might compear for their interests, or might reduce, if they were hurt upon the matter, yet they were not such parties as the pursuer was obliged to know or call in this process.
Stair, v. 2. p. 88.*** Gosford reports this case.
In a reduction of a right made by the Earl of Dundee, ex capite inhibitions, wherein the party receiver of the right was called, and the heirs of line of the Earl, it was alleged, that all parties having interest were not cited, viz, the Lord Haltoun, who was ultimus hares to the Earl, by the failure of the heirs male, in whose favours only the estate was settled by a charter under the Great Seal. It was replied, that the being apparent heirs of line alive who were cited, the pursuer was not obliged to know, if the estate was tailzied by a charter, or if by the failure it belonged to the donatar by a gift of ultimus hares.
The Lords did repel the defence in respect of the reply.
