Within the year no step can be taken against the heir, whether his appearance would infer a passive title or not.
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The deceased Robert Stewart in Towiemore, having contracted great debts, a scheme was laid by his friends to transact the debts, whereof eases were expected, and Alexander Anderson and others undertook the trust. Accordingly, Anderson transacted the debts in his own name; but, as no writing had intervened his son pretending ignorance of his father's engagements, refused to communicate the eases.
A process of count and reckoning was pursued against him, wherein a proof before answer of the eases got was allowed; but the defender dying before the proof was taken, a transference was pursued against his heir.
To which it being objected, That no transference could proceed intra annum deliberandi, the Ordinary, after advising with the Lords, “found, That the heir is not obliged to answer within the annus deliberandi to any suit as representing his father, and therefore refused to transfer.”
Against which the pursuer reclaimed, and urged, That as the defender could suffer no prejudice by the transference, so even the proof formerly allowed should be allowed to proceed, as that would infer no passive title; and if there was any doubt, he was willing to consent that nothing to be done in the proof intra annum should infer a passive title; and gave this reason for his anxiety, that the proof of the eases depended upon the testimonies of certain aged witnesses, whereof two had already lately died.
“The Lords refused the petition.” They were of opinion, That within the year no step can be taken against the heir, whether his appearance would infer a passive title or not.
Fol. Dic. v. 3. p. 316. Kilkerran, (Annus Deliberandi.) No 1. p. 28.
