Exceptions, Whether Proponable in Cursu Diligentia.
L Corsbie v. Shaw
Date: 15 January 1629 Case No. No 84.
An exception of the bastardy of a remote predecessor, was not received to interrupt a service.
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Brieves being impetrate by the Laird of Crosbie, for serving him heir to one of his predecessors, before the four macers, and the Lords having joined four advocates with them, two nominated for the Laird of Corsbie, and two for Shaw, who compeared, and opponed the service; and being admitted for his interest therein, he being heritably infeft in the lands, whereunto Corsbie craved to be served heir to that of his predecessor, who was infeft therein; and he alleging, that that predecessor was a bastard, and so she could not have an heir, nor he be served as her to him; and the assessors differing in judgment, and being of contrary opinions, and craving the Lords' advice therein, by their supplication given in for that effect, whereupon they being heard in presence of the Lords, the Lords gave advice, that that allegeance should not stay the service; for they thought all that the exception of bastardy, by the 94th act of Parliament 6th Ja. IV, is ordained to be received against the service, ought to be understood of the bastardy of him, who impetrates the brief, and not of the predecessor, to whom the party desires to be served heir; specially in this case, and cases of antiquity, where the predecessor was deceast many years before, as in this case where he was dead fifty years before; for, if this exception of the predecessor's being bastard were received, it would be a way to stop all services.
Act. Craig.Alt. Neilson.
Fol. Dic. v. 1. p. 177. Durie, p. 415.
