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It being alleged against a removing, at the instance of a donatar of ultimus hæres; That the gift is not declared, which ought to have been done: 2do, That the pursuer was infeft after the term of removing; and though he had been infeft before the term, and after the warning, the infeftment could not be drawn back in favours of him a singular successor:
Answered: It is absurd to require a declarator of a gift of ultimus hæres, the defunct having no heirs to be called in such a process; for if he had heirs, there would be no place for an ultimus hæres.
Replied: There ought to be a declarator, though proceeding but upon a general citation of all persons having interest, at the market cross, as was found the 31st of July 1666, in the case of Thomas Crawford contra Town of Edinburgh, No 7. p. 3410.; and Balnagown against Dingwall, No 6. p. 3409.
‘The Lords found, That a gift of ultimus hæres ought to be declared as well as a gift of bastardy.’
Fol. Dic. v. 1. p. 228. Harcarse, (Removing.) No 840. p. 240.
