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Scottish Court of Session Decisions >>
Captain Alexander Straiton v the Earl of Lauderdale. [1708] Mor 3579 (23 July 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Mor0903579-032.html Cite as:
[1708] Mor 3579
Whether an Heir, who has renounced, must be further Discussed.
Captain Alexander Straiton v. the Earl of Lauderdale
Date: 23 July 1708 Case No. No 32.
Not necessary to discuss a present heir of line, before the heir male and of tailzie, if the former heir of line renounced, and an adjudication was led upon the renunciation, unless some estate belonging to the defunct was omitted out of the adjudication.
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In a pursuit at the instance of Captain Straiton, as having right by progress to a debt due by the Duke of Lauderdale to Sir Andrew Forrester, against the Earl of Lauderdale, as heir-male of tailzie to the Duke his uncle for payment,
Answered for the defender; He cannot be insisted against as heir-male, till the Lord Yester, the present heir of line, be discust, and his lands adjudged, if he renounce, conform to the 69th decision observed by the Lord Dirleton, December 8th 1666, No 30. p. 3578.
Replied for the pursuer; In a former process the deceast Marchioness of Tweeddale, the first heir of line, renounced, and the pursuer, upon her renunciation, adjudged.
Duplied for the defender; He not being called in the former process, it is still competent to him now to object, That the Lord Yester, the present heir of line, is not discussed; for his mother's renunciation doth not hinder him to represent, when he thinks fit. Besides, some estate belonging to the Duke, was left out of the adjudication that followed upon the renunciation.
The Lords found no necessity to discuss the Lord Yester the present heir of line, if the former heir renounced, and an adjudication was led upon her renunciation. But sustained the defence upon an estate not adjudged from the former heir of line.
