An apparent heir-male passing by his immediate predecessor, who had been three years in possession of the estate without infeftment, and serving heir to a remoter last infeft, cannot be pursued for payment of his immediate predecessor's debt, till the heir of line be discussed.
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In this action, mentioned supra 8th November instant, voce Heir cum Beneficio, the Lady Hawley being decerned as heir of line to the late Earl of Dalhousie, to dispone to the pursuer, for security of his debt, the inventory of the defunct's estate, the pursuer insisted for payment against William, now Earl of Dalhousie, upon the act of Parliament 1695; because he, passing by the defunct, his immediate predecessor, who was three years in possession of the estate, had served heir-male to a remoter predecessor, and consequently was liable for the debts of the interjected person to the value of that estate.
The Lords found, That the defender being only apparent heir-male to the pursuer's debtor, can only be liable suo ordine, after the heir of line is first discussed. For the act of Parliament doth not take away from an apparent heir the privilege of discussing, that would be competent to him if served.
