Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

John Muir of Annistoun
v.
Calder

Date: 22 February 1637

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John Muir of Annistoun pursuing registration of a bond against Janet Calder, as she who behaved herself as heir to the granter of the bond, in so far as she had served and retoured herself heir to him, by which retour she had behaved herself as heir. And the defender alleging, that, if the pursuer insisted against her as heir served and retoured, she was content that sentence should pass against her eo nomine; but, where he insisted against her, as behaving herself as heir hoc medio, seeing she had retoured herself heir to him, that cannot be found lawful, in respect the pursuer will not acknowledge the retour to be lawful, but quarrels the same; and it being so quarrelled, and alleged by the pursuer to be unlawful, no reason that thereby she should be found to behave herself as heir;— the Lords found, in respect that the pursuer insisted not against the defender as heir retoured, (which he might prove by the retour produced,) but that thereby he would insist against her as behaving herself as heir, therefore they found that they would not sustain process against her eo nomine, upon that member and alternative; without prejudice to him to insist against her as heir by the retour produced; wherein he might protest, that, by the said insisting and production of the retour, he did not approve the lawfulness thereof, but that he might be heard to quarrel the same upon any ground of nullity, or other thing competent to him in law against the same.

Act. Nicolson. Alt.——. Gibson, Clerk.

Page 828.