An heir cum beneficio was allowed to bring a judicial proof of the value of the estate, and to account at that value, so as to have the estate declared free; but there were only personal creditors.
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An heir entering cum beneficio brought a process against his predecessor's creditors, for ascertaining the value of the estate, to be proved by witnesses; concluding, that the estate might be declared to belong to the pursuer, and to be free and disburdened of the predecessor's debts, upon payment to the creditors of the proved value. It was yielded by the creditors, That in a personal action against the heir upon the passive titles, he is no further liable than in valorem, because so says the act of Parliament. But they contended, That as they had their option to insist personally against the heir, or to make their debts real upon the estate; if they chose the last, there was nothing in the act to bar them from making the best of their debtor's effects, by dividing the subject among themselves after they had made it their own by legal diligence, or by disposing of it at a public roup, and dividing the price. The Lords notwithstanding sustained process, and decerned in terms of the libel. This was in the case of personal creditors. See Appendix.
