Scottish Court of Session Decisions

Subject_1 DISCUSSION.
Subject_2 DIVISION I.

Discussion of Heirs.
Subject_3 SECT. III.

Whether an Heir Male can be Pursued without calling the Heir of Line.

Laird of Luss and Glendunning
v.
Earl of Nithsdale

Date: 24 January 1672
Case No. No 15.

An heir-male being pursued for payment of his, predecessor's debt, the Lords found no process, in regard the heir of line was not called, tho' the heir of line had no visible estate.

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The Laird of Luss and Glendunning pursue the Earl of Nithsdale as heir to Robert Earl of Nithsdale, to pay a debt of his, who alleged no process, because all parties having interest are not called, viz. Hugh Wallace, son to the deceased Laird of Craigie, who is heir of line to the deceased Earl of Nithsdale, and the defender is only heir-male; and the heir being heir absolute, and liable in the first place, who may have writs and defences, exclusive of the pursuit, he must be called. It was answered, There was no necessity to call the heir of line, unless the defender can condescend upon any estate competent to him, that might be first affected, which is the ordinary reply, and ordinarily sustained. It was replied, That this reply is ordinary where the heir of line and others are both called, against the exception of the order of discussing; but such processes were never sustained without calling the heir of line,

The Lords found no process till the heir of line were called, and that he could not be called by a new diligence upon this summons.

Fol. Dic. v. 1. 246. Stair, v. 2. p. 53.