Has the heir renouncing any further interest in the proceedings?
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Francis Irving having pursued, as representing his debtor upon a renunciation to be heir; the defender was assoilzied, and the pursuer obtained decreet cognitionis causa, and thereupon pursues an adjudication; at the calling of which summons by a clerk, the same was desired to be seen for the defender, who had renounced, and both applying to the Ordinary, he reported the case. The pursuer alleged, That albeit the defender was called in the adjudication, it was only dicits causa for form's sake; and the defender hath no more interest to compear, than when a citation is at the market-cross against all and sundry, quilibet ex populo pretending to be called thereby, should crave to see; which though it used not to be debated before the act of regulation, yet since, if the person renouncing shall be found to have interest to see and answer, and that the process must be enrolled, the pursuer will be postponed a long time, and others preferred, or the year may expire before his process can be called by the roll. It was answered, That the defender, though renouncing to be heir, being called, could not be refused to see and answer, but might allege the renunciation was false.
The Lords ordained the defender to see in the clerk's hands for 48 hours, that if any special consideration could be represented, he might see, in common form; but otherwise, seeing he had renounced, he had no interest to stop the pursuer's diligence, and to get the process seen in common form, and returned and inrolled.
Stair, v. 2. p. 334.*** Dirleton reports this case:
In an adjudication, the apparent heir being called, and his advocates having compeared and desired to see the process; it was alleged, That he had no interest, having renounced, and that his compearing was only to retard the pursuer's diligence, that other creditors might come in. This point of form being reported, viz. Whether his procurators should see; and if they should see, whether in communi forma or not, or in the clerk's hands?
Some of the Lords were of the opinion, that being a person necessary to be called, and being called, his procurators should see in communi forma, the law making no distinction; and though he had renounced, yet he had interest to see and object, whether the pursuer's debt was the true debt, or satisfied; and if it appeared that it was satisfied, he may, notwithstanding his renunciation, enter, if he thought fit; and the renunciation may be questioned as false.
The Lords nevertheless found, That he should see only in the clerk's hands within 24 hours; though it was urged, that if the party were in town, that course might be taken; but the party being at the distance of 100 miles, or any other considerable distance, so that in so short a time the procurator could not get information, it were better that in such cases the processes should be seen in communi forma; for if parties had prejudice, they would apply again by bills, which would occasion greater trouble and delay.
