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The Lords found, that a decreet obtained before the Commissary of Aberdeen, as heir upon probation, by production of his sasine, would not prove him heir before the Lords, unless he produced his sasine or retour.
Fol. Dic. v. 2. p. 346. Haddington, MS. No 2652.*** Durie reports this case:
In an action pursued by ——against ——, which was intented by the pursuer, as heir to his predecessor, and for instructing of him to be heir, he produced a decreet recovered at his own instance, before the Commissaries of Aberdeen, as heir to that same predecessor, verified in that judgment: Which sentence the Lords found was not sufficient to prove him heir in this process, except he produced some other sufficient writ in this same process, then pursued before the Lords, which should be sustained to make him heir, by and beside that decreet: Either the defender therein might have suffered the same to proceed in the pursuer's favours, or might have omitted to propone any argument against the writ then used to prove, which the defender in this process might competently propone, if the same writ were produced, as they found it should be in this same process.
