In an improbation the Lords found, that services cannot be reduced for not production, where only the party is called in the process; and neither the director of the chancellary, who is presumed to have the service, and to keep the same for the warrant of the retour, nor the judge and clerk before whom the service was deduced, is called.
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In an action of improbation, pursued at the instance of the Lord Elphingston against the Earl of Marr, the Lords found, That services, whereby persons were served heirs to their predecessors in lands, ought not to be decerned to make no faith for non-production, where the party is only called in that process, and neither the director of the Chancellory, who is presumed to have the service, and to keep the same for the warrant of the retour, nor the Judge before whom the service was deduced, are called; for the Lords found, That no certification ought to be granted against the service, except either the Director of the Chancellary, or the Judge and Clerk, before whom the service was deduced, had been called with the party to produce the same; and also the Lords found, That the retours of elder dates, before the year 1550, ought not to be decerned to make no faith for non-production, where the principal service, sealed by the assizers, is produced, albeit the same be not extant at the Chancellary, nor extracted out of the same. See Retour.
Act. Nicolson elder & Stuart.Alt. Hope & Aiton.Clerk, Scot.
Fol. Dic. v. 1. p. 139. Durie, p. 111.
