Objections against a Standing Infeftmtent how Proponable.
Martin v. Birss
Date: 30 July 1628 Case No. No 36.
It being objected to a pursuer's infeftment, that it was null, as proceeding upon a retour whereby the pursuer was served heir before a Sheriff, within whose jurisdiction the lands did not lie; this objection was not received by way of exception, but reserved to reduction.
Click here to view a pdf copy of this documet : PDF Copy
In a reduction, Flora Martin contra Birss, for reducing of an infeftment of two acres of land in Preston, the defender alleged, That the pursuer's sasine was null, because it proceeded upon a retour, whereby she is served heir to her father in the lands libelled, before the Sheriff of Edinburgh; albeit the lands lies in the constabulary of Haddinton, and so the service should have been deduced before that Judge, and not being so done, the retour was a non suo judice, and therefore null ope exceptionis; this allegeance was repelled, and the nullity not received hoc loco by way of exception, seeing the same consisted in facto, and that the retour was not produced in this process, but only the sasine, which bore no such thing of the lying of the lands; and reserved action of reduction against the said retour, as accords.
Act. Mowat.Alt. ——.Clerk, Hay.
Fol. Dic. v. 1. p. 172. Durie, p. 395.
