Subject_1 EXHIBITION AD DELIBERANDUM. Subject_2 SECT. I.
Competent to all sorts of heirs.
Lord Callendar v. Duke of Hamilton
1686.
March. Case No. No 7.
Action ad deliberandum competent to all heirs who may be charged, whether of line, tailzie, or others.
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In an exhibition ad deliberandum, raised by my Lord Callendar, against the Duke of Hamilton;
Alleged for the defender, That such actions are only competent to heirs of line, and not to heirs of tailzie; 2do, The defunct was denuded by a disposition to Lord John Hamilton, which the pursuer, an apparent heir of tailzie, cannot quarrel.
Answered, The action ad deliberandum is competent to all heirs who may be charged; 2do, The pursuer hath interest to call for the disposition, seeing it may contain clauses or conditions that may concern him; and when an heritor of a tailzied estate doth any deed contrary to the tailzie, the succeeding heir of tailzie may quarrel the same.
Replied, The tailzie contains no irritancies in case of failzie and contravention, but only obligements in favour of the heirs, whereof they cannot quarrel the contravention.
The Lords found action ad deliberandum to be competent to all heirs that may be charged; and without considering the import of the clauses, sustained process at the pursuer's instance.
