268. Right of Deliberation.-Formerly the heir was allowed by statute(h) six months, computed from the ancestor's death, or from his own birth if posthumous, to ascertain the extent of his ancestor's debts, and to consider whether it would be for his interest to take up or renounce the succession. (2) With this view, he was entitled (and he might do so at any time before service(j)) to bring an action to compel persons who were in possession of his ancestor's title-deeds, securities, books, &c., to produce them for his inspection and information;(k) and during that period no action could be brought into Court against him,() except in relation to the widow's jointure.(m) But this privilege was terminated not only by the lapse of the six months, but by the heir making up a title ;(n) or by taking possession and uplifting the rents; or by certain other acts of intromission to be noticed in the following section, in which case he incurred the responsibility appropriate to his title of possession.(o)

But by a recent Act the law has been altered as from 1st October, 1874. That Act declares that

An heir shall not be liable for the debts of his ancestors beyond the value of the estate of such ancestor to which he succeeds; and if an heir shall renounce the succession, the creditors of the ancestor shall have the same rights against the estate as upon a renunciation according to the law before the commencement of this Act. When an heir has, before renunciation, intromitted with the ancestor's estate, he shall be liable for the ancestor's debts to the extent of such intromissions, but no further.(p)

LEGAL RESPONSIBILITIES ATTACHING TO POSSESSION
WITHOUT A TITLE.

269. Where Responsibility incurred.-Formerly, where an apparent heir intromitted with his ancestor's heritage without entering by special service, or otherwise taking means to limit his liability, he was said to have incurred a passive title, by which he

(h) 31 & 32 Vict. c. 101, § 61. (i) Ersk. 3, 8, 54.

(j) M'Farlane, 1799, M. 3991. (k) Adair, 1787, M. 3992.

(1) Mackintosh, 9th July, 1829, 7 Sh. 882.

(m) Pitcairn, 1702, M. 6876.
(n) Campbell, 1708, M. 6877.
(0) M'Laren, § 187.

(p) 37 & 38 Vict. c. 94, § 12.

RESPONSIBILITIES ATTACHING TO POSSESSION WITHOUT A TITLE. 257

subjected himself to universal liability for his ancestor's debts and obligations. The liability was incurred to creditors of the ancestor, but not to persons interested only in the succession.(g) It was incurred where the heir, by himself or others on his behalf, drew the rents without completing a title(r); where he conveyed or concurred in a conveyance of any part of the heritage(s); where he uplifted or discharged debts due to the deceased(t); where he bought the heritage to which he was heir otherwise than at a public sale, or intromitted with papers in a charterchest(u); or where he possessed any part of the heritage on a title derived from a relation to whom he was heir.(v) But, as stated in the preceding section, the law has now been altered as regards all successions opening after 1st October, 1874. An heir is not now liable for the debts of his ancestor beyond the value of such ancestor's estate to which he succeeds.

270. Where Responsibility not incurred.-Under the law applicable to successions opening previous to 1st October, 1874, it was held that no responsibility for the ancestor's debts attached where the intromitter was not apparent heir(w); where the apparent heir did any ineffectual act, although in the character of apparent heir(); where the property did not truly belong to the predecessor(y); where the intromission might fairly be ascribed to another title than the assumption of the succession(); where the intromission was inconsiderable, and without suspicion of fraud(a), such as by assumption of a title of honour or a hereditary office(b); by making up a title for the mere purpose of implementing the ancestor's feudal conveyance(c); by mere service without taking benefit by it(d); by taking possession of the titles for examination only(e); by conveying the heritage to the ancestor's creditors, to enable them to complete a title for their own benefit(f); or by service on a limited title.(g) The responsibility is now limited as stated in the preceding section.

נליין

FEUDAL INVESTMENT OF HEIRS.

271. Service of an Heir.-Previous to the passing of the Conveyancing Act, 1874(h), it was necessary in order to obtain a vested and transmissible interest in heritable subjects, that the heir made up a title by service or writ of clare constat. A service is a proceeding before a Sheriff for ascertaining the heir of a person deceased(); it is either general or special-general where the heir wishes to establish right to such heritable subjects belonging to the ancestor as do not require infeftment, or to which the deceased has merely personal rights, without reference to any particular subject; and special where he wishes to establish right to particular lands in which the ancestor died infeft.(j)

But by the said Act of 1874(k), the heir is now put, immediately on the succession opening to him, in the same position as if he had held a disposition of the lands from his ancestor infeft therein, and consequently he is enabled at once to deal with the estate, either onerously or gratuitously, and it can be attached for his debts, excepting that the ancestor's creditors have a preference under the Act 1661 c. 24.

The words of the Act are:

A personal right to every estate in land descendible to heirs shall, without service or other procedure, vest, or be held to have vested, in the heir entitled to succeed thereto, by his survivance of the person to whom he is entitled to succeed, whether such person shall have died before or after the commencement of this Act, provided the heir shall be alive at the date of the commencement of this Act, if such person shall have died before that date, and such personal right shall, subject, to the provisions of this Act, be of the like nature and be attended with the like consequences, and be transmissible in the same manner as a personal right to land under an unfeudalised conveyance, according to the existing law and practice.

To prevent injury to other parties from this new mode of vesting a personal right to an estate in an heir-apparent, the said Act of 1874 assimilates the right so acquired by an apparent heir to the right acquired by service under the former law, with respect to the power to challenge the title within twenty years, and it also provides remedies for preserving the rights of such other parties.

(h) 37 & 38 Vict. c. 94.

(i) Stair, 3, 5, 25; Bell's Prin. §

(j) Bell's Prin. § 1826; Ersk. 3, 8, 63.

1824.

(k) § 9.

The words of the Act in this respect are:-(1)

The right of any person to an estate in land by succession as heir acquired after the commencement of this Act may, at any time within twenty years of his infeftment as heir and his entering into possession of such estate, but not thereafter, be challenged by any one who would have been entitled to challenge the decree of service of such person had he expede a service according to the practice existing prior to this Act; and, in the absence of evidence to the contrary, the date of his infeftment shall, for the purpose of this limitation, be assumed to be the date of entering into possession; and such challenge may be made by an action to negative or set aside the alleged right of succession, or to reduce any title expede in virtue of such alleged right.

Nothing herein contained shall prejudice or affect the legal remedies of any person having lawful title and interest to prevent any other person from entering into possession of an estate in land as heir, or to remove him from possession, or to obtain sequestration of such estate, or the appointment of a judicial factor pending the trial of any question regarding the right of succession; and it shall be lawful for a court of competent jurisdiction to regulate possession pending such trial, as the court shall see just, notwithstanding the completion, under this Act, of the title of any person as heir.

Where an apparent heir dies, having only the constructive personal right to lands given by this last-mentioned Act, his heir or disponee may make up a title according to a new mode provided by the Act; or he may make up a title by service to the proprietor last infeft according to the former practice. The new mode of making up a title is described in the Act as follows:-(m)

A title of an heir to, or disponee of, a proprietor of any lands who was neither infeft nor served, but vested only, with a personal right to such lands, by virtue of this Act, or of any person acquiring right from, such heir or disponee, may be made up in like manner as if the person making up a title had held a disposition from the proprietor last infeft in the lands in favour of his immediate successor therein, and a disposition and assignation from each heir or disponee, if any, intervening between such immediate successor and the person so making up a title in favour of his immediate successor therein; and such title may be made up in manner following-viz.: The heir or disponee or other successor making up such title shall present to the Sheriff of Chancery, or to the Sheriff of the county where the lands are situated, a petition which may embrace several separate (m) § 10.

(1) §§ 13, 14.

lands or estates, and may be in the form of schedule E hereto annexed, or as nearly in that form as the circumstances in each particular case will permit, setting forth the name of the proprietor last infeft, a description of the lands, or a valid reference thereto, and the names and, so far as known, the designations of every proprietor having only a personal right therein, whether by succession, bequest, gift, or conveyance, who has intervened between the proprietor last infeft and the petitioner, and also setting forth the petitioner's own right to the said lands; and on the decree pronounced on said petition finding the facts therein set forth proved, and that the petitioner is entitled to be infeft in the said lands, being extracted in one or several extracts, and on such extract decree or decrees, as the case may be, being recorded in the appropriate register of sasines, the petitioner shall be held to be duly infeft in the said lands contained in the extract or extracts so recorded. Such petition shall be pre. sented, published, and carried through in all respects as if the same were a petition for special service under the now existing law; and the extract decree or decrees on such petition, as the case may be, shall be equivalent to a decree of special service, and when duly recorded as aforesaid in the appropriate register of sasines, shall have the same effect as regards the lands therein contained as an extract decree of special service duly recorded under the now existing law. The form of petition here referred to is as follows:

Unto The Honourable the Sheriff of [specify the county, or say "of Chancery,"] the petition of A. B. of G.

Humbly sheweth,

That the late C. D. of G. died last vest and seised in all and whole [describe or refer to the lands as the same are described or referred to in the recorded deed or instrument in favour of the person who was last vest and seised in the lands, or refer to them as described in some other recorded deed or instrument] conform to instrument of sasine [or other recorded deed or instrument, as the case may be], recorded in the [specify the register of sasines and date of recording, and where there are any real burdens, conditions, or qualifications, here specify or refer to them, or where the lands are held under entail, here specify the conditions of the entail, or refer to them as contained in the entail, as recorded in the register of tailzies, or if it is not so recorded, in the entail or other deed or instrument recorded in the register of sasines].

Or, that M. N. of Y. was last vest and seised in all and whole [describe or refer and specify title and date of recording, &c., as above]. That the said M. N. by disposition dated [specify date] conveyed the