A creditor having led an apprising against the heir of line, and offered to dispone the apprising to the heir of provision; this was found not to be a discussion sufficient to give him access against the heir of provision, since he did not put the apprising to execution.
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The Lord Torphichen having right to a comprising led both against the heir of line and the heir of provision of umquhile Andrew Oswald's second marriage, he pursues a declarator, that by the apprising he hath irredeemable right to the lands of Letham by the foresaid apprising which is now expired. It was alleged for the heir of provision, That the apprising could have no effect against the lands of Letham, in respect that there is an estate sufficient for this debt apprised from the heir of line, who must be first discust before any access against the heirs of provision. The pursuer answered, That he bad discussed the heir of line in the apprising, which he was willing to dispone to the heir of provision. It was replied, That the discussing of the heir of line is not by sentence or decreet, but by putting the same to execution, that payment may be recovered thereby in whole or in part; and seeing the pursuer can condescend upon no impediment to be satisfied of his debt by the heir of line, and that it is offered to be proven that he is more worth than the sum pursued for;
