Tenor of the Brieve. - Form of proceeding. - Reduction of Service. - Can a Service be stopped by an offer to prove a nearer Heir?
Sir James Mercer of Aldie v. William Rouan
Date: 24 February 1665 Case No. No. 12.
What warrant sufficient.
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Sir James Mercer of Aldie, as donatar to the gift of ultimus hæres, of umquhile John Rouan, pursues a reduction of the retour and service of William Rouan, served heir to the defunct, as his goodsir's brother's oye; and having obtained certification contra non producta, there being nothing produced but the retour, service, brieve, and executions, but no warrant of the service, either bearing the testimony of witnesses, adduced to prove the propinquity of blood, or bearing, that the inquest of proper knowledge knew the same. The pursuer now insists in his reason of reduction, that the service is without warrant, and without probation by writ or witnesses. It was answered, non relevat, as it is libelled, bearing only that it is without probation by writ or witnesses, whereas it might proceed upon the proper knowledge of the inquest, or any two of them. The pursuer answered, That neither were there any probation by writ or witnesses, nor by the minutes of process, bearing that the persons of inquest of their proper knowledge did serve.
The Lords considering, that the minutes of this process upon service for serving general heirs, which may be before any judicature, use not to be exactly kept, would not instantly reduce for want of the warrants, but ordained the persons of inquest to be produced, to condescend whether they proceeded upon proper knowledge, and what was the reason of their knowledge.
