Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By James Burnett,Lord Monoboddo .
Subject_2 COMPLAINT FROM STIRLINGSHIRE.

Count Antonio Lesly
v.
Grant

Date: 26 January 1758

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In this case the Lords found that a remoter heir of entail might pursue a declarator against an heir in possession, that he was an alien, and consequently incapable to succeed; although the pursuer was not the next heir when the alien was set aside, but there was a nearer entitled to take before the pursuer. In this case the declarator concluded also against that nearer heir, that he was Popish, and there were brieves taken out to serve the pursuer nearest Protestant heir, in which service it was to be proved that the nearer heir was a Papist. But some of the Lords put their opinion, not upon that specialty, but upon the general point, that any remoter heir of entail could pursue a declarator of irritancy against the heir in possession, because it was his interest to have one at least removed that stood before him, if he could not get them all removed; and so Prestongrange said it was decided in the case of Irvine of Drum, which was the first cause he had ever pleaded.