An exception in a declarator of bastardy was sustained, being founded on the service of an heir to the alleged bastard, which being a standing sentence, the Lords found sufficient to elide the gift, so long as it stood unreduced; and this was found, altho' the service was not retoured nor past the chancery, and although it should never be retoured, the person having died shortly after the service.
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In an action of declarator of bastardy, at the instance of M'Culloch contra L. Merton, the Lords sustained an exception, founded upon the service of an heir to the alleged bastard, which service being a sentence standing, the Lords sustained as sufficient to elide the gift of bastardy, and to exclude the King's right, so long as the said service stands untaken away, and which the Lords so found, albeit the service was not retoured, nor past the chancellary; and which, albeit it should never be retoured, seeing the person served died shortly after the service; and so the pursuer alleged, that the said service not retoured ought not to elide this pursuit, the same being an imperfect and null writ, which would never furnish action to him who was served, and which ought not to produce any benefit to him, and consequently ought not to furnish any argument in his favours against this pursuit; notwithstanding whereof the service was sustained, as said is.
Act. Nicolson et Lawtie.Alt. Aiton, et Neilson.Clerk, Gibson.
Fol. Dic. v. 1. p. 170. Durie, p. 224.
