Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
Cunningham v. Semple
Date: 5 March 1624 Case No. No 37.
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In an action pursued at the instance of Cunningham of Mongreenan, as heir to his predecessor, against Semple, for reduction of a service and brief of terce, the Lords sustained the pursuit, upon the production of a retour, where the pursuer was served heir; albeit it was deduced, served, and retoured, after the interning of the summons, which they found sufficient to instruct the pursuit; albeit he was neither served nor retoured at that time, seeing he was nearest of blood, and that person who only could be heir, and the service drew back the retour to the time of the pursuit, and so much the more, because it was a general retour, and not in any particular lands.
Act. Hope.Alt. Nicolson.Clerk, Hay.
Fol. Dic. v. 2. p. 303. Durie, p. 117.*** Haddington reports this case:
A Summons of reduction and improbation, raised at the instance of a pursuer, as heir to his predecessor, before he be retoured general heir, will be sustained, if he be retoured heir before the disputation of the cause; because, a retour is only declarataria juris, and, in such cases, may be drawn back. Practiques were alleged to that purpose by the Advocate, betwixt William Ker of Ancram. or Captain David Home, and the Earl Bothwell, and Lord Glamis. (See Appendix.)——In reduction of a service of terce, the Judge and Inquest need not to be summoned, if no reason be libelled, nor iniquity and punishment concluded against them. The apparent heir, pursuing reduction of writs, whereof some concern his predecessor, and are quarrelled, needs not to call any to represent his father, to whom he is heir apparent; because, he cannot pursue himself, and be both pursuer and defender.
